IQ (Review Enduring Powers) - [2014] TASGAB 3

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

IQ – Application by SQ to review an enduring guardianship

IQ (Review Enduring Powers) [2014] TASGAB 3

REASONS FOR DECISION

Anita Smith (President)
Rodney Lester (Member)
Kenneth Stanton (Member)

Date of hearing: 24 January 2014

Review of enduring guardianship – presumption of appointor’s mental capacity - meaning of a guardian acting ‘in that capacity’ – enduring guardian not acting ‘in that capacity until it is established that the appointor lacks mental capacity – ability or inability to act as an enduring guardian may be assessed prior to the appointor’s lack of mental capacity in some circumstances - role of an enduring guardian distinguished from role of a carer

Guardianship and Administration Act 1995 s. 32, 34
Gibbons v Wright (1954) 91 CLR 423

On 1 November 2013, the Board received applications from SQ to review an enduring power of attorney and an enduring guardianship purportedly executed by the IQ (the appointor). Although the applications were listed together for hearing, this statement of reasons relates solely to the Board’s decision regarding the application to review the enduring guardianship.

The Instrument:

On 1 November 2009 the appointor appointed KSI (the enduring guardian) as his enduring guardian pursuant to section 32 of the Guardianship and Administration Act 1995 (the Act). There are no conditions specified in the instrument. The instrument appears on its face to be properly witnessed and was registered on 6 November 2009. The validity of the instrument was not challenged.

There is, however, an irregularity in the instrument. The instrument appears to appoint SQ as an enduring guardian (the notation of this appears in different handwriting and different ink to the remainder of the document). However, SQ has not signed acceptance of the appointment. Section 32(2)(b) of the Act provides that:

“An instrument is not effective to appoint an enduring guardian unless – (b) there is endorsed on it an acceptance in the form or to the effect of the acceptance specified in Form 1 signed by each person appointed as an enduring guardian.”

Accordingly, the attempted appointment of SQ is defective. It was not argued by any party that this is a valid appointment and the Board will not consider it further.

The Application:

The applicant, SQ is one of three of the appointor’s adult children. He was supported in making this application by his siblings, FQ and KQ. The applicant alleges pursuant to section 34(1)(b) of the Act that the enduring guardian:
(i) is not willing or able to act in that capacity; or
(ii) has, in that capacity, not acted in the best interests of the appointor or has acted in an incompetent or negligent manner or contrary to the provisions of the Act.

The application was heard on 24 January 2014 in Launceston. The following persons attended the hearing in relation to the review of the enduring guardianship:

IQ – appointor
KSI – attorney, enduring guardian and appointor’s wife
SQ – applicant and appointor’s son
FQ - appointor’s daughter
KQ - appointor’s son
HG – attorney
Mr. Darrell Grey – solicitor for the appointor
Ms. Kate Hanslow – solicitor for the applicant
Representatives of the Office of the Public Guardian and the Public Trustee

The appointor and the enduring guardian have, through counsel, unequivocally resisted the application since its instigation.

At the commencement of the hearing, the enduring guardian confirmed that she remains willing to act in that capacity. She did not seek revocation of the instrument pursuant to section 34(1)(a) of the Act.

Background

The following background information is derived from reports and documents supplied to the Board by the applicant. Not all of this information has been tested in a hearing. The inclusion of background information in this statement of reasons is to provide context to the application, rather than to represent findings of fact by the Board.
The appointor is 96 years of age. He and his wife, HI, raised three children John (66), SQ (64) and FQ (59). HI died in 1997. Later that same year KSI, now 82 years of age, moved into the appointor’s home as his carer. The following year she and the appointor purchased and moved into a house at XXXX.
In 2009, the appointor was diagnosed with dementia and commenced taking medication for that condition. He was, in April that year, assessed by the Aged Care Assessment Team (ACAT) as eligible for Residential Respite High Care. In a Mini Mental State Examination (MMSE) conducted by ACAT, the appointor scored 24/30. The instrument appointing an enduring guardian was executed on 1 November 2009. On 4 November 2009, Dr. Campbell-Smith diagnosed the appointor with early stage dementia but indicated that he had sound cognitive skills and could execute an enduring power of attorney. The following day he appointed KSI as his attorney under an enduring power of attorney.
On 4 May 2012, the appointor married KSI. On 10 May 2012, Dr. Campbell-Smith expressed an opinion that the appointor would be unable to make a new will. However, on 8 October 2012 Dr. Keith Barnes conducted a MMSE with a score of 27/30 and concluded that the appointor had sound mind, a good memory, an understanding of the process of making a will, and no cognitive impairment.
In May 2013, FQ developed concerns about her father’s condition and, sometimes together with SQ, commenced enquiries with Dr. Campbell-Smith, Dr. Rooney, Dr. Kang (a hearing specialist) and Dr. MacLaine Cross. The latter practitioner indicated to FQ that the appointor’s diagnosis of dementia did not mean that he could not make legal decisions. On 24 June 2013, Prof. George Razay wrote a referral letter to Dr. George Hyde with respect to the appointor. His letter noted the two previous MMSE scores and indicated Prof. Razay’s view that the appointor had capacity to execute an enduring guardianship, an enduring power of attorney and a will. The referral to Dr. Hyde did not proceed.
On 28 June 2013, the appointor executed a revocation of the 2009 enduring power of attorney and a new enduring power of attorney appointing KQ, FQ and SQ as joint and several attorneys with Tasmanian Perpetual Trustees as an alternative attorney. A further ACAT assessment was conducted in July 2013 and the appointor’s MMSE score was 24/30. In August 2013, that power was revoked and a third power appointing KSI and HG as joint and several attorneys was executed and registered. Considerable family tension has accompanied the changing appointments of enduring powers of attorney and there is suspicion on the part of the appointor’s adult children about KSI’s handling of the appointor’s finances. Between May 2013 and the hearing the appointor’s adult children formed concerns about the appointor’s memory and capacity and some concerns about the adequacy of his care.

Has the Enduring Guardian Been Acting “In That Capacity”?

An enduring guardian’s powers emanate from Part 5 of the Act. Section 32 of the Act provides:
“(5) Subject to any conditions specified in the instrument, an instrument appointing an enduring guardian authorizes each appointee to exercise the powers of a guardian under section 25 if the appointor subsequently becomes unable by reason of a disability to make reasonable judgements in respect of matters relating to his or her personal circumstances.”

Enduring guardianships differ in many ways from enduring powers of attorney. Enduring powers of attorney are most often executed within a hybrid instrument that creates both an enduring power and a general power of attorney. In practice, this means that there can be a graduation from the attorney acting under an agency phase (when the donor has capacity) to then acting under an enduring phase (after the donor has lost capacity). This graduation does not occur with enduring guardianships. An enduring guardian can only exercise the powers of a guardian (i.e. act in that capacity) when the appointor becomes “unable by reason of a disability to make reasonable judgements in respect of matters relating to his or her personal circumstances.”

The Board considers that the interaction between sections 32 and 34 of the Act require the applicant to satisfy the Board that the enduring guardian is acting, has attempted to act or has acted in that capacity. This involves a two stage test. Firstly, the applicant must establish, as a threshold to further consideration of the application, that by reason of a disability the appointor has become unable to make reasonable judgments about his person and circumstances. Secondly, the applicant must establish that the enduring guardian has acted in that capacity by reference to actions taken or decisions made as a guardian. A person providing assistance as a carer or spouse, is not necessarily making decisions as a guardian on behalf of the appointor and decisions and actions undertaken in a different capacity may not invite the operation of section 34.

The Appointor’s Capacity to Make Reasonable Judgments:

It was not contested that the appointor has dementia and has difficulties with his short-term memory. However, the appointor strongly objected to any finding that, by reason of that disability, he lacks capacity to make reasonable judgments about his person and circumstances, such as where he lives temporarily or permanently or what health care he receives.

The applicant was unable to obtain an assessment of the appointor’s current capacity to make reasonable judgments in respect of matters relating to his personal circumstances because he objected to undergoing such an assessment. Absent an emergency guardianship order, the Board lacks any facility to compel the assessment of a person to whom an application relates. Therefore, the applicant relied on existing medical reports to establish a loss of capacity to make reasonable judgments. These reports included the following:
(i)A report by Dr. Martin Morrissey, Old Age Psychiatrist dated 22 January 2014. Dr. Morrissey noted that he has not met the appointor and drew his conclusions from the written reports supplied to him. He notes:
“With regards to IQ’s current capacity to “make reasonable judgments in relation to his personal circumstances” this depends much on the specific task being undertaken. By way of general comment, most people with an established dementia have limited insight regarding their care needs or the ability of those around them to assist. Most people in this situation will for example not be able to recognise when their care needs can no longer be managed in a domestic setting and require nursing home care or extensive in home assistance from formal carers. A small example of this relevant to IQ is that to Professor Razay in June 2013 he denied incontinence yet the assessment of Dr. Kim Rooney in May 2013 identified incontinence as a “major problem”.”
(ii)Progress notes recorded by an ACAT assessor (possibly C. Willis RN) on 4 July 2013 which states:
“Constantly looks to KSI for answers. Was aware that family were present on Friday (28/6/13) but did not recall nature of visit. KSI reports some episodes of confusion needs step by step prompting, vague at Ax – Able to complete clock drawing test LTM remains intact; wants to remain at home; limited insight into the level of care that KSI is providing: He agreed to continue to being approved for high level respite; and KSI would like a CACP to assist her as well. Wants to remain at home.
(iii)An Aged Care Client Record by Cate Willis (possibly) dated 26 November 2013 which notes:
“IQ has deteriorating mobility and cognition. He is becoming frailer, and is totally reliant on KSI for all personal and instrumental activities of daily living. He vocalises his strong desire to remain at home, however KSI is needing assistance to help care for him. She herself is becoming frailer, and admits that she will need extra assistance if the situation is to be sustainable.”
“Mentally alert at assessment, however does have a cognitive impairment. STM loss noted, turns to wife for answers, vague at times. Relies on KSI for planning and processing of information. Diagnosed with dementia 2009. … Hearing loss affects communication/comprehension.”
“IQ has deteriorating mobility and declining cognition. He is becoming frailer and is totally reliant on KSI for all instrumental activities of daily living. He is however determined to remain at home in the long term, and KSI wishes to support him to do this. … He agreed to being approved for high level residential respite and a Community Aged Care Package. He was not interested in being approved for residential care. CACP to assist with personal care, in-home respite, socialization, domestic support and meal preparation.”
(iv)A report by Dr. Kim Rooney which states: “IQ was not able to participate in the conversation because of profound deafness and early dementia but remained affable and pleasantly engaged throughout.”
The applicant sought the appointor’s participation in the hearing as a means to demonstrate capacity issues to the Board. The Board allowed some limited questioning of the appointor and asked some questions directly of him. Generally he answered questions relevantly but the Board did not consider this to be evidence of his capacity or incapacity. This approach ultimately was of limited value, because the appointor’s communication is so significantly impaired by his hearing difficulties.
Counsel for the applicant submitted that the reports noted above generally indicated that there is a need for the appointor to have greater assistance and that the appointor has refused such assistance. She also submitted that the enduring guardian’s intervention in his care regime was in substitution of the appointor’s own decision making.
The Board did not consider that the sum of the reports could shift the presumption of the appointor’s present capacity to make reasonable judgments about his person and circumstances, even though it is clear that he has some cognitive impairment and memory loss arising from dementia. The Board notes that medical reports not directly relied upon by the applicant (e.g. Dr. Barnes, Prof. Razay) positively assert that the appointor retains complex decision making capacity. With respect to the specific reports noted in paragraph 18 above the Board notes as follows:
Dr. Morrissey’s comments are of a general nature and he did not have the benefit of examining the appointor in person. Because he had not examined the appointor, the Board did not afford significant weight to his opinion. Additionally, there may be alternative explanations, other than a lack of insight or capacity (for example relevance to the consultation, embarrassment, immediacy of symptoms), for the discrepancy in the appointor’s statements about incontinence to different practitioners.
There is some evidence in the documents prepared by Ms. Willis RN that the appointor has limited insight into his care needs, but it has not been demonstrated that this lack of insight has caused him to make unreasonable judgments about his care needs. For instance, although he has limited insight into his care needs, he was recorded in those documents as having accepted additional care. Additionally, he has not been the subject of a recommendation for full-time residential aged care and none of the reports suggest that his decision to remain at home is unreasonable.
The fact that the appointor looks to his wife for answers may be indicative of his communication difficulties (due to his profound deafness) or the closeness of their relationship as much as it may reflect any lack of mental capacity. A reliance on another for personal care and activities of daily living is not direct proof of a lack of mental capacity.
The High Court in Gibbons v Wright (1954) 91 CLR 423 stated:
“The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation.” – at page 437
“… the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature and effect of that transaction when it is explained.” – at page 438.
In this case the Board was not satisfied that, in respect to the particular transactions in question (e.g. accepting care, having access to respite), the appointor is not capable of understanding the general nature of accepting or refusing medical or residential care or personal assistance when it is explained to him. Therefore, the Board is not satisfied that the enduring guardian has acted or attempted to act in that capacity.
1. In light of the finding in the paragraph above, it is not possible for the Board to consider whether the enduring guardian has or has not acted in the best interests of the appointor or has or has not acted in an incompetent or negligent manner or contrary to the provisions of the Act pursuant to section 34(1)(b)(ii) because she has not commenced to act in that capacity. However, the Board acknowledges that an enduring guardian might be found to be unable to act in that capacity pursuant to section 34 (1)(b)(i), even though the enduring guardianship is not in its enduring phase – for instance if the enduring guardian is medically or geographically incapable of so acting. While this would potentially put the Board in an unfavourable position of making a determination about the affairs of an appointor with capacity (because a competent appointor could simply revoke, amend or re-execute his or her own instrument regardless of the decision of the Board), that technical possibility exists.
The principal focus of the enquiry in relation to the enduring guardian’s ability to act in this case was her ability to make decisions in relation to the appointor’s person and circumstances. Unfortunately, the applicants consistently confused this, in the papers and in the hearing, with the issue of whether the enduring guardian (as a carer) meets the required level of assistance that the appointor requires with activities of daily living. For instance, the applicant made complaints that the bathroom facilities are not sufficiently accessible, that the enduring guardian once left the appointor at home alone while she attended church and that she purchases foods that are inappropriate to his diet. The Board is assessing the enduring guardian’s ability to make decisions, not her abilities as a carer.
If there was evidence of wanton or abject neglect by a carer who is also an enduring guardian, that might be evidence of a poor standard of decision-making sufficient to disqualify her prior to the enduring phase of the instrument. However, the Board did not consider that the factual evidence in this case reached anything like that standard. In fact, the issues raised in this regard were reasonably typical of issues that would arise in any household where the two occupants are in their 80s and 90s and those issues were, at the time of the hearing, in the process of being addressed with additional services to the home.

Consequently, the Board cannot be satisfied, pursuant to section 34(1)(b) of the Act, that the enduring guardian (i) is not willing or able to act in that capacity, or (ii) has, in that capacity, not acted in the best interests of the appointor or has acted in an incompetent or negligent manner or contrary to the provisions of the Act. The application is dismissed.

Anita Smith Rodney Lester Kenneth Stanton
PRESIDENT MEMBER MEMBER

Statement of reasons requested: 5 February 2014

Statement of reasons delivered: 13 March 2014