JNG (Review Enduring Powers) - [2015] TASGAB 24

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

JNG – Application to review an instrument appointing an enduring guardian, Application to review an enduring power of attorney by GLG

JNG (Review Enduring Powers) [2015] TASGAB 24

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 15 December 2015

Review of enduring powers – enduring guardianship - physical illness does not mean that an enduring guardian is unable to perform the role – appointor made a willing and informed choice of guardian – no evidence of enduring guardians underperforming in the role

Review of enduring powers –enduring power of attorney – no duty on attorneys to share information about the estate with a family member who is not the donor or the attorney – no evidence of wrongdoing

Costs

Guardianship and Administration Act 1995 – s. 34

Powers of Attorney Act 2000 - s.33

JNG (the appointor/donor) is an 80 year old widow and mother of five children. She appointed two of her children, TSG and KNI (the guardians/attorneys) as her joint and several enduring attorneys on 10 October 2011, registered as instrument PAXXXX. On the same day she appointed those same children as her enduring guardians, registered as instrument XXXX. The appointor/donor’s youngest daughter, GLG, has sought a review of both instruments because she holds concerns about the actions or inactions of her siblings pursuant to those powers.
The instruments appear to be validly executed in compliance with the respective legislation and the applicant has not asserted that either instrument is invalid. The guardians/attorneys do not dispute that the applicant has a proper interest in the matters. The guardians/attorneys and the applicant agree that both instruments are operative and in their enduring phases and that they have been in their enduring phase since 13 August 2014. The applicant and the guardians/attorneys did not object to the Board hearing the application to review the enduring guardianship together with the application to review the enduring power of attorney.

Background:

In December 2011, Dr. Robert Newton referred the appointor/donor to consultant physician and specialist in the health of the elderly, Dr. David Dunbabin. Dr. Dunbabin noted that at that time the donor/appointor had a two to three year history of cognitive changes. On testing, he found that she had some significant cognitive impairment, possibly part of an early dementing illness. Dr. Dunbabin continued to review her progress until 2014 as there were changes in her behaviour from time to time; however she remained in the care of her husband, SG, at home.
On 13 August 2014, the appointor/donor and her husband were involved in a single vehicle accident, which resulted in the appointor/donor being hospitalised for numerous injuries and her husband’s death on 26 August 2014. It was at this point that the enduring instruments were activated. The appointor/donor remained in the Royal Hobart Hospital until she was admitted to Barossa Park Lodge on 4 September 2014.
After initial admission to Barossa Park Lodge, the appointor/donor displayed severely agitated behaviours during October and as a result she was admitted to the Roy Fagan Centre from 12 November 2014 until 17 December 2014. She returned to Barossa Park Lodge and has remained there since.
According to the applicant, the siblings and their parents historically had varying degrees of closeness or conflict. Also according to the applicant there were numerous disagreements between the siblings about health and medical matters for both parents as well as the handling of their father’s estate by executors between the 13 August 2014 and 4 September 2014 and beyond. These disagreements have continued up until the time of the hearing and it would appear that family relationships are fractured at least insofar as relations with the applicant and her other siblings are concerned.

The hearing process:

Due to complexity and volume of the application, the Board convened a directions conference to clarify the content of the applications and to set a time table for the production of witness statements and evidence relating to the claims in the applications and the responses of the guardians/attorneys. It also indicated that the Board would seek certain records and medical opinion in relation to the applications. The directions were confirmed in two documents sent to the parties called: Outcomes of Direction Conference 27 August 2015.
The Board obtained records from the Dementia Behaviour Management Advisory Service (DBMAS) in relation to the appointor/donor and also a report from Dr. Alison Cleary. These were provided to the parties. A report by Dr. David Dunbabin was also received after a request by the applicant.
The applicant submitted documents in response to the Board’s directions in September 2015. However she was invited to resubmit those documents to better comply with the Board’s expectations. She accepted that invitation and resubmitted amended documents in October 2015. The applicant and guardians/attorneys submitted various witness statements. Subsequently the guardians/attorneys submitted their responses. All documents were circulated to all parties.
A hearing of the matter was listed for 15 December 2015. As had occurred at the directions conference in August 2015 a large number of family members attended with a view to providing support to one party or another. The appointor/donor did not attend either session as it was deemed that it would be too distressing for her and her understanding of proceedings would be severely limited. The applicant was accompanied by a solicitor who was providing support and assistance, but not representing her in the hearing.
The applicant had made a request for closed proceedings, to exclude the witnesses. However the Board suggested to the parties that, given the volume of papers, it might be better to proceed to accept all statements as received but the Board would apply its discretion to the weight, relevance and credibility of those statements. All parties agreed with that course. The Board then invited each of the parties to make timed submissions in the absence of the witnesses and to respond to each others’ submissions and questions from the Board. The parties also agreed with this course, as was appropriate in the timely and efficient disposal of the matters.
The hearing on 15 December 2015 consisted of the parties making submissions and the Board announcing its decision at the conclusion of the submissions. The applicant made an application for the recovery of her costs and the Board also announced a decision with respect to that application.

The application to review the instrument appointing an enduring guardian:

The applicant asserted that:

Is KNI able to act in the capacity of an enduring guardian?

TSG and KNI both stated that they were willing to continue as enduring guardians for the appointor.
The applicant claimed that KNI was inactive as an enduring guardian due to her health status and that she had abdicated her responsibilities to the other guardian, TSG. The applicant identified a number of decisions in relation to the appointor where TSG had been the active decision-maker and that KNI had simply acquiesced.
KNI rejected the applicant’s claims and provided a brief statement from a medical practitioner that outlined her condition and rejected the assertion that it impacts on her ability to act as an enduring guardian.
The instrument is executed an old pro forma which states that enduring guardians must act jointly. I am not certain that this is what is required by the legislation, as presumably an appointor could specify whether the appointment of enduring guardians is joint or several in the conditions of appointment. However, even if it is what is required by the legislation, the word jointly does not require that they shoulder the burden of being an enduring guardian equally, only that they be agreed in their decisions, which they clearly have been.
I am not satisfied that KNI’s condition impedes her abilities as an enduring guardian pursuant to s.34(1)(b)(i) of the Act.

Have the enduring guardians, in that capacity, not acted in the best interests of the appointor, acted in an incompetent manner, acted in a negligent manner, or acted contrary to the provisions of the Act pursuant to s. 34(1)(b)(ii) of the Act?

Following is a list of the means by which the applicant attempted to demonstrate that the enduring guardians are in breach of section 34(1)(b)(ii) of the Act and ought to be replaced or the instrument revoked :
·The appointor’s physical and mental health is in a state of rapid decline.
·The enduring guardians:
a.instructed staff at the aged care facility not to divulge the appointor’s medical information to the applicant, or alternatively that medical information be only divulged to TSG,
b.have not been accountable to the applicant for their decisions,
c.have not allowed the applicant to be present at the appointor’s medical appointments,
d.did not provide 1:1 care and medication strategies as DBMAS recommended leading to her admission to the Roy Fagan Centre and general decline in health,
e.gave an instruction that the appointor not be woken, including for meals,
f.denied the appointor the appropriate grieving process,
g.have not taken the appointor for visits to her home,
h.gave away the appointor’s pet sheep,
i.provided little cognitive stimulation in her room,
j.did not engage Dr. Dunbabin who was familiar with her care needs,
k.implemented palliative rather than rehabilitative or preventative health care strategies,
l.changed her medication regime to one which is inappropriate or one of overmedication,
m.failed to instruct medical teams that the appointor was in need of regular flexible cystoscopy,
n.did not admit her to a private hospital but she remained at the Royal Hobart Hospital,
o.yelled at each other in the appointor’s presence immediately after JNG’s husband had died, and
p.paid insufficient attention to the appointor’s false teeth, clothing, haircuts and access to personal items.
With respect to items 18(a) to 18(c) above, these are decisions that are within the purview of an enduring guardian. An enduring guardian is not required to be accountable to a third party and it is not a breach of their duties that they may keep information from other parties if they determine that it is in the best interests of the appointor to do so. Indeed, it may be an abrogation of their duties as enduring guardians if they allowed a third party (not a guardian) to interfere in medical decision-making.
With respect to items 18(d) to 18(p) above, I refer in some detail to the reports provided to the Board by Drs. Cleary and Dunbabin.
Dr. Alison Cleary MBBS (Hons) Geriatrician was engaged at the request of the Board to review JNG and specific matters in relation to her care. Dr. Cleary reports:
“At no stage did DBMAS recommend care at home, it was clear following her initial hospitalisation at RHH that her care needs were high and together with the requirement for 24hr supervision due to her dementia that care at home would be unsafe. RHH made the assessment and recommendation for permanent residential care on the 1/9/14.
DBMAS have brokerage funds of $500 available to residential facilities to facilitate additional staff support of complex patients. According to federal requirements this is to address a specific need, and the more commonly utilized directive is 1:1 care. This is so that the funds are contracted to a specific resident and not to the facility at large. A brokerage agreement was offered to Barossa Park on Set 3^rd 2014 and also Nov 12^th 2014, to support her behavioural management during a period of significant risk and whilst awaiting transfer to RFC. … The expectation is not that 1:1 care is provided 24 hours, but rather that the facility may roster additional staff at critical times if increased need. The contract dated 12^th Nov was subsequently voided due to JNG’s admission to RFC and thus lack of need.
JNG is currently in the advanced stages of Alzheimer’s disease, which is a terminal neurodegenerative disease with an average course of 8-12 years. Her prognosis is very poor and she will likely succumb as a complication of her overall frailty and/or due to sepsis. This is an expected terminal trajectory in dementia and the focus should be on comfort care and a palliative approach rather than burdensome and invasive treatments. At all times her care team and GP have co-ordinated appropriate and comprehensive plans to meet her needs. Medications to alleviate distress and agitation such as antipsychotics and sedatives are used routinely and recommended in dementia care at increased doses when behavioural strategies have failed. These medications carry an increased risk of morbidity and mortality (stroke, cardiac events, falls, pneumonia and death). Their use is recommended despite these risks as a quality of life measure to alleviate distress in the context of a terminal disease. Her medication regimens in the past 12 month shave been appropriate to meet her medical and psychological (i.e. agitation, distress and delirium) symptoms. At no stage have any decisions or actions by her Guardians’ contributed to the progressive decline in JNG’s health. Her decline is in context with the expected course of her progressive dementia.
I have no recommendations to offer on JNG’s current care management and medication regimen. The staff and management at Barossa Park have provided excellent care and communication with medical staff, her Guardian and the allied health providers. Their collaborative decisions have been justified and clearly documented throughout her notes.”
Dr. David Dunbabin MBS FRACP reported at the request of the applicant. He had been provided with some relevant documentation including Dr. Cleary’s report quoted above. He reviewed the appointor on 7 October 2015. His report states:
“At the first time I saw JNG [December 2011] her mini mental score was 20/30, suggestive of a moderate dementia of Alzheimer type. ….
I reviewed JNG on the 18th August 2014 to provide an opinion to the treating doctors regarding her history of dementia and potential for rehabilitation and a return to independent living at home. I felt that this would be impossible due to the severity of her cognitive defects and the deep co-dependent relationship she shared with SG. JNG was managed on the Older Persons Unit at the Royal Hobart Hospital where her confusional state could be best addressed. She was noted to be quite distressed at times, especially following her husband’s death, and on at least one occasion she was physically aggressive towards another patient. She was transferred to residential care at Barossa Park on the 24^th September 2014.
I have not been formally involved in JNG’s care since that time …
I understand that the issues of concern relate to JNG’s support immediately following her bereavement and transfer to Barossa Park together with ongoing concerns about medication usage and intensity of care and support at the nursing home. I think the main concern is whether or not different management may have affected her current outcome or improved her quality of life over the last fifteen months. With regard to the former, JNG is now some four years from my diagnosis of Alzheimer’s disease and she is currently presenting with symptoms and signs of advanced dementia of Alzheimer type where loss of verbalisation and physical mobility together with skills of self-care are usual and appropriate. Average life expectancy following a diagnosis of moderate dementia of Alzheimer type is approximately four years and her current physical and cognitive state would be consistent with this. I do not believe that any of her current medications are adversely affecting her physical or cognitive state at the moment.
The second issue of whether or not her quality of life could have been improved with increased provision of one-to-one care is more difficult to answer. Certainly SG and JNG lived private and interdependent lives for many years, and even if she had not had dementia I think his death would have had fairly catastrophic effects on her psyche and mood. There had been signs of verbal aggression and distress at times before the accident and there would have been exacerbated by her grief and separation from SG. Unfortunately handling these behavioural issues is very difficult in any situation and I think the medications used were by and large appropriate and necessary in the circumstances. Transfer to the Roy Fagan Centre and the Older Persons Unit at the Royal Hobart Hospital were JNG’s only options given the severity of her behavioural disturbance. With acute distress and agitation one-on-one care as suggested by DBMAS is sometimes helpful, but in JNG’s case may have been necessary on an indefinite basis which may not have been sustainable financially. A dedicated grieving process may have enable JNG to better come to terms with SG’s death, but given her significant short term memory deficits it is difficult to know how effective this would have been.
I don’t believe that JNG’s current physical and cognitive state has necessarily been accelerated by any of the treatments given or not given due to the preceding twelve months.
The reports are highly consistent and highly relevant. I accept both reports on the basis that the authors are experts in their field who have expressed independent views of the medical issues raised. The contents of these two reports establish that the enduring guardians have acted appropriately and that the appointor is not in need of any additional care, nor would her decline in health have been averted had she been treated with another form of medication, in another venue or with different decisions being taken. To the extent that any of the applicant’s concerns not been directly referred to in the passages above, they are minor or irrelevant issues.
The enduring guardians have provided explanations for these matters which do not need repetition in light of the medical opinions. The Board considers their explanations to be credible. In addition, their explanations were consistent with the independent medical opinions and the records obtained from DBMAS. Where there are differences between the accounts of the enduring guardians and the applicant, the Board prefers the accounts of the enduring guardians because they were more methodical about their explanations, used less hyperbole and were less self-serving.
I am satisfied that the enduring guardians have acted in the appointor’s best interests. I am not satisfied that they have been negligent in their duties, nor that they have acted contrary to the provisions of the Act. It is a credit to them that within three weeks of a critical event in the appointor’s life they were able to secure appropriate residential aged care in a facility that even the applicant admits provides excellent care to her.
The applicant made numerous submissions and offered witness statements that attested to her suitability as a guardian and a loving daughter to the appointor. She submitted that she ought to be appointed as an enduring guardian or that the instrument ought to be revoked and she appointed by the Board as a guardian.

An instrument appointing an enduring guardian is an instrument of self-determination. The appointor selected some but not all of her children at a time prior to her diagnosis of dementia and in the full knowledge of what the applicant describes as “decades” of intra-family conflict. As there has been no argument or evidence to the contrary, it must be assumed that she made an informed and willing choice. There is no evidence that would support the Board interfering in an informed choice made by the appointor.
The application to review the instrument appointing an enduring guardian is dismissed.

The application to review the enduring power of attorney instrument:

The applicant asserted that the attorneys had failed in their duties as attorneys because:
The applicant also accused the attorneys of failing to be accountable to her. This was not considered by the Board as the attorneys do not owe a duty of accountability to any person other than the donor or the Board or other relevant legal entities (e.g. Centrelink, the tax office).
Taking into account the report by Dr. Cleary as quoted above and the written evidence of the parties, I consider that the allegation in paragraph 30(a) is misconceived. There was never a recommendation for paid 1:1 care in the donor’s home. The recommendation for 1:1 care was a recommendation to Barossa Park Lodge to seek additional funding for staff to assist with the demands arising from the donor’s behavioural issues. An application for a second package of that funding was withdrawn because by that time the donor was at the Roy Fagan Centre.
The allegation by the applicant in paragraph 30(b) states that the attorneys sold the donor’s rental/commercial property at $260,000 when the council valuation was $280,000. The attorneys explained that the property was sold privately to the existing tenants which saved on agent’s fees that would have been $15,000. The donor’s residential/farm property has been valued by Saunders and Pitt at $360,000 and by a real estate agent at $375-$380,000. It is the attorneys’ intention to place the property for sale in that range as the advice of the agent is that the Council valuation is not achievable. I accept the attorneys’ explanation and consider that their duty as attorneys is to seek and act on reasonable advice, which they have done with respect to the sale of properties.
Ms. Harris explained that $10,000 was withdrawn from the donor’s estate on the advice of accountants Scanlon Richardson to reduce the donor’s estate and assist her eligibility for a Centrelink pension. Hence the account was set up in the donor’s daughter’s names. I am not sure of the legality of that arrangement but as it was advised by accountants, I will assume there is a legal basis for that advice. The intention behind the transfer was always to use the funds in the donor’s interests. The funds have been used for the donor’s expenses, intrastate travel for family members related to SG’s funeral arrangements, ashes ceremony, distribution of his estate, contributions to the persons who had assumed care of the donor’s sheep and pets for their upkeep. These amounted to less than $5000. They are the unwarranted expenses alleged in paragraph 30(f) above. They are consistent with the role of an attorney as set out in section 32(1B) of the Powers of Attorney Act 2000. Alternatively they were related to the management of the estate of the late SG and are not reviewable by this Board.
The Board did not consider that a loss in paper value of the range of $20,000 is significant in comparison to the size of the estate (in excess of $1.1m), especially when the donor has been admitted to aged care for twelve months.
Although there were interactions between the attorneys and the applicant with respect to the donor’s firearms which would be best described as ‘messy,’ ultimately the firearms were sold to a third party who was appropriately licenced for what the attorneys determined was their market value. There is nothing in the process or outcome of this endeavour which is inconsistent with the role of an attorney.
The attorneys provided an extensive list of the work that has been done on the donor’s property in preparation for sale. There was no evidence that the work had not been done and in any event I consider the attorneys’ evidence about this to be credible. The attorneys gave away the donor’s sheep which collectively had a value of $150. Some money was also given to the recipient towards the upkeep of the animals. This appears to the Board to be a sensible decision for the welfare of the animals and reflective of donor’s affection for the animals. I do not consider this represents any breach of the attorneys’ duties.
The only chattels liquidated according to the attorneys were a wood heater, a ride-on mower and some safes which were sold or exchanged for services rendered. All such transactions were in the discretion of the attorneys and appear to be reasonable transactions given the need to prepare the donor’s property for sale.
The attorneys provided full information and were highly cooperative with the Board. The Board has no reason to consider that the information they provided was inaccurate or dishonest. From their accounts, they have been diligent and active as attorneys, even in light of some curious interference from the applicant.
There was no evidence to substantiate the applicant’s concerns about any activity or inactivity by the attorneys.
Again the applicant sought the dismissal of the attorneys. Again there is no evidence that warrants the removal of persons that the donor validly appointed as her attorneys in an act of self-determination.
The application is dismissed.

Costs:

The applicant sought reimbursement of her costs on the grounds that when the guardians/attorneys had sought legal advice it became necessary for her to do so. The guardians/attorneys indicated that they had personally expended $2500 in legal fees. The applicant had expended approximately $16,000.

I considered that it was unreasonable that the guardians/attorneys had been put to personal expense when their actions were in defence of their positions as guardians/attorneys and they had been exonerated. I therefore determined that it is appropriate that they reimburse $2500 from the donor’s estate for legal costs.

I also considered that, although much of the applicant’s application (which has not been discussed here due to its irrelevance) was related to her feelings that she had been ‘left out’ of the instruments and would have been a more logical appointee, she had in part been motivated by genuine feelings of concern for her mother and concerns (ultimately unfounded) that her mother was the victim of elder abuse. She has had significant expense, and I considered it just that she be reimbursed from the donor’s estate to the same value as the guardians/attorneys, i.e. $2500 to recognise her concern for her mother’s affairs and so as not to discourage other persons from making similar applications where concerns of elder abuse are genuine.

Both applications are dismissed. The guardians/attorneys and the applicant are entitled to be reimbursed $2500 from the donor’s estate towards their legal costs in the action.

Anita Smith
PRESIDENT

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JNG (Review Enduring Powers) [2015] TASGAB 24

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