K B and R B v The Guardianship & Administration Board
[2007] TASSC 45
•21 June 2007
[2007] TASSC 45
CITATION: K B and R B v The Guardianship & Administration Board [2007] TASSC 45
PARTIES: B, K
B, R
v
GUARDIANSHIP & ADMINISTRATION BOARD (THE)
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 61/2006
DELIVERED ON: 21 June 2007
DELIVERED AT: Hobart
HEARING DATE: 14 March 2007
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Appeals other than from a judge of Supreme Court – Nature of appeal – Hearing to revise guardianship order.
Aust Dig Procedure [282]
Mental Health – Guardians, committees, administrator, managers and receivers – Other matters – Guardianship and Administration Board (Tasmania) – Capacity – Need for appointment of administrator of estate.
Guardianship and Administration Act 1995 (Tas), s51.
Aust Dig Mental Health [4]
REPRESENTATION:
Counsel:
Appellants: B R McTaggart
First Respondent Submitted to the jurisdiction of the Court
Second Respondent: P Turner
Solicitors:
Appellants: Mackie Crompton
Second Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 45
Number of paragraphs: 53
Serial No 45/2007
File No LCA 61/2006
K B and R B v THE GUARDIANSHIP & ADMINISTRATION BOARD
and THE ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT SLICER J
21 June 2007
K B, a resident of the United Kingdom, is the grand-niece through marriage of B who, on 8 February 2006, signed an instrument appointing K B as her attorney in accordance with the Powers of Attorney Act 2000 ("the Act"). R B, is a grand-nephew, and had been residing temporarily with B during the period 2005 to 2006 and is an "interested person" within the meaning of the Guardianship and Administration Act 1995 ("the Guardianship Act"). He came to Tasmania in March following the commencement of the proceedings which have resulted in this appeal.
History and nature of the proceedings
B was born in Poland in 1928 and came to Australia in 1960 and married the brother of the paternal grandmother of the appellants. B has no children and was widowed in 1984.
In November 1995, B granted an enduring power of attorney to S, who was an original applicant in portion of these proceedings. Her conduct as the appointee has been impugned and remains a matter of contention. An officer of the Public Guardian was the original applicant to these proceedings, commenced under the Guardianship Act, and which have resulted in this appeal.
On 2 October 2005, B was admitted to the Launceston General Hospital suffering from a variety of symptoms, some of which were consistent with salmonella poisoning. On 18 October whilst hospitalised, B appointed S as her enduring guardian and another person, J B, as an alternate. The instrument of appointment was witnessed by Dr Jan Radford, B's general medical practitioner.
Trouble arose within the circle of friends, acquaintances and others associated with B. Varying accusations of fitness and propriety of conduct were made at times by and against different persons. Central to those events were S, who became subject to other proceedings, and E BN, who became a party to a tenancy agreement made with B. It is not necessary to consider in detail the varying accusations, statements of belief and the like, except where they touch directly on any appointment or revocation of instruments made under the Act or orders made under the Guardianship Act.
On 30 January 2006, during a meeting at B's home, Mrs BN accused S of impropriety in dealing with B's financial affairs and arranged for B to leave her residence and return to stay at Mrs BN's home. Following that meeting, S advised the Guardianship Board ("the Board") of her concerns.
On 3 February 2006, a solicitor wrote to the Board advising it of his concerns about a purported attempt to revoke the appointment of S as attorney in November 1995. By an instrument of the same date, B, stating herself to be of sound mind, revoked the enduring power of attorney granted to S in 1995. The revocation was registered on 16 February 2006. In an undated document, addressed to S, B referred to a communication made on 31 January 2006 that she no longer wished S to be involved in her personal affairs.
On 8 February 2006, B signed an instrument granting K B a general enduring power of attorney. The form of acceptance is signed but remains undated. That instrument was registered on 21 February 2006.
On 9 February an officer of the Public Guardian applied for an emergency order under the Guardianship Act referring to the October admission to hospital and medical opinions stating that B "has dementia". The officer also stated her belief that "there would need to be a section 28 in the order to be able to move the said person back to their [sic] own home". That application was addressed to the Board, with a copy supplied to the Public Guardian. The Board made an emergency order on 14 February substituting the Public Guardian for the enduring guardians. On the following day, B executed a further instrument revoking the power of attorney granted to S in November 1995. Counsel for the appellant says in his outline that this document was registered on 16 February, although the stamp of the Recorder suggests that it was an instrument dated 3 February (PA 13040) which was registered (appendix J of report) on that day at the same time as the appointment of K B as her "enduring attorney".
On 18 February B signed a tenancy agreement with E BN, Mrs BN's daughter already referred to, relating to the residential property. The terms of that agreement formed part of the reasons given by the Board in making orders which are the subject of this appeal. The terms of the tenancy agreement include:
(1)a term of two years commencing on 18 February 2006;
(2)payment of a weekly rental of $5;
(3)payment of rates, other statutory charges and for repairs to be the responsibility of the owner;
(4)power to the tenant to sublet the premises;
(5)an additional clause providing:
"16If for any due reason tenant is ask [sic] to vacate premisses [sic] by the landlord or title holder the landlord will pay out the total cost up to $300.00 pw for new rental to the 18th of February 2008."
It is an understatement to observe that the terms of the tenancy agreement were disadvantageous to B.
On 23 February the Public Guardian made a further application that an officer of the Board be made guardian. The basis of that application was stated to be a disability identified as "dementia". The application provided a short history of the dealings between the applicant K B, S, Mrs BN and others preceding the making of the application. Correspondence between two treating medical practitioners was attached to the application. On 24 February, S purported to assign her enduring power of attorney to the Public Trustee, pursuant to the Act, s32. On that day the Board revoked the appointment of S and Mrs BR, made in October 2005, as enduring guardians. On 27 February 2006, the Board made an emergency administration order appointing the Public Trustee as administrator, pursuant to the Guardianship Act, s65(4).
On 28 February, B arrived at a nursing home for two weeks' respite care. Between that day and 11 March, many persons and institutions became involved in assessments, meetings, contact arrangements, cancelled appointments, periods of restricted access, and differing expressions of concern. Those events involved police, the Public Trustee, various agencies, medical practitioners, agency representatives, Advocacy Tasmania, case workers, lawyers, friends and acquaintances. On 2 March, S applied, pursuant to the Guardianship Act, s33(2) and (3), for:
(1)a declaration that the power of attorney granted to K B on 21 February 2006 was invalid on the basis that "… the donor did not have capacity to understand the nature and effect of the document";
(2)acceptance (or declaration of that acceptance) that she (S) did not wish "to continue to act under enduring power of attorney 70/2497 22/11/1995";
(3)an order appointing the Public Trustee the administrator of the property of B.
On 11 March, R B arrived in Tasmania from the United Kingdom. On that day B was "removed" from the respite care home. Nursing staff reported that B had been kidnapped and a note of the incident records "… Staff tried to stop, doors of car locked and staff members nearly run over trying to stop. They have rung the Police." Mrs BN and R B had been present at the time of that incident on 11 March. R B had continued to reside at B's home up until the date of the hearing.
On 24 March, the emergency guardianship order was renewed and three days later the administration order extended. The hearing took place on 16 June. As of that date, the position of the "interested parties" can be summarised as:
(1)Mrs BN believed that S had misappropriated money belonging to B. Police were involved in the investigation of that allegation and a prosecution commenced.
(2)S believed that Mrs BN had taken advantage of B's medical condition and would remain a threat to her financial security.
(3)R B believed that the Public Guardian wished "to put B into a nursing home and liquidate her assets".
(4)The Public Trustee was concerned about the terms of the tenancy agreement entered into between B and E BN and the existence of a subtenant (who was the daughter of Mrs BN), a matter not previously disclosed.
(5)The Public Guardian was concerned about the general capacity of B to look after herself, the opening of a new bank account on 6 March, and the possible influence of others in relation to her financial affairs.
The Board was involved in the exercise of responsibility and power governed by two enactments. It had before it:
(1)a grant of power to S given on 22 November 1995;
(2)a revocation of that grant by an instrument made on 3 February 2006;
(3)a grant of power to K B by an instrument dated 8 February 2006 but not registered until a later date, namely 14 February 2006;
(4)a further revocation of the grant of power to S given on 22 November 1995, by an instrument dated 15 February 2006;
(5)a grant of power or appointment as guardian to S and another, made on 18 October 2005;
(6)an assignment by S to the Public Trustee of the power of attorney granted on 22 November 1995;
(7)an application for an emergency guardianship order made by, or on behalf of, the Public Guardian on 9 February 2006;
(8)an order the Board made on 24 February revoking the appointment of S and another as guardians;
(9)an application by S made on 3 March 2006 seeking a declaration of invalidity of the appointment of K B as attorney, made on 8 February, and the appointment of the Public Trustee as administrator.
The Board dealt with the varying instruments and applications for the use of statutory powers in the following manner:
(1)It conducted a hearing at which five of the parties or interested persons were represented by counsel. The material placed before the Board showed that at least three other legal practitioners had been involved in the provision of legal advice to various persons interested in the proceedings.
(2)It received evidence in the form of witness statements provided on behalf of the appellants, reports and documentation provided by officers of the Public Guardian and Public Trustee, medical reports, records and assessments provided by the Public Guardian, and a medical assessment tendered on behalf of the appellants. It permitted questioning of witnesses during the course of the hearing.
(3)On the basis of that material, and having heard competing admissions:
(a)The Board determined that B was not, as of the date of the hearing, "in need of a guardian". In doing so it had regard to the advice of the Public Guardian that she did not seek to maintain the application. The effect of that determination was that the emergency orders made on 14 February and 24 March were not extended. It had already revoked the appointment made on 18 October 2005 of S and Mrs J B as enduring guardians by its order on 24 February 2006.
(b)The Board upheld the validity of the grant of the power of attorney made on 22 November 1995.
(c)The Board determined that the appointment of K B as the grantee of the power of attorney made on 8 February 2006 did not comply with the Act, s30(2)(a), in that at the time of its making B did not "understand the nature and effect of the documentation".
(d)The Board determined that the revocation made on 16 February 2006 (registered on 21 February) was invalid in that at the relevant time the donor lacked the mental capacity to do so.
(e)The Board made no order as to the revocation of power made in the document dated 3 February 2006. Since that document was registered on 21 February, it may be that only one of the two documents was treated as applicable, since PA 13040 and PA 12039 were both registered on 21 February, although the former PA 13040 is shown as registered on 16 February.
(f)Consistent with determination (b) above that the 1995 grant was validly made and its revocation invalid, the Board nevertheless revoked the original grant on the grounds that:
(i) it was not in B's best interests to continue with the grant of power;
(ii) at the relevant times, B was unable to make reasonable judgments in respect of her estate and was in need of an administrator. The relevant time would be the date of hearing, although the Board was entitled to pay regard to the events of February in reaching that conclusion.
(g)The Board determined that the Public Trustee be appointed as administrator with the powers and duties conferred by the Act, Pt7, Div4. It dismissed the application for the appointment of a guardian, but found that there was a need for an administrator of B's finances. The request for the appointment of a guardian was withdrawn by the Public Guardian and given that B had returned to her home and was capable of carrying out routine day to day tasks, that there was no "existing need" for the appointment of a guardian. But in relation to the need for the appointment of an administrator, the Board determined:
"50For the purposes of the test of capacity in section 51(1)(b) of the Guardianship and Administration Act 1995 the Board takes into account the same medical opinions and the above observations of Mrs [B's] behaviour in the hearing and concludes that by reason of a disability, Mrs [B] is not capable of making reasonable judgments with respect of matters relating to her estate.
The Question of Need for an Administrator
51In respect of the issue of whether Mrs [B] is in a need of an administrator, the Board is satisfied that she is. No doubt Mrs [B] is an inherently very generous person, but the Board is not satisfied that that explains why she entered into an oppressive tenancy agreement. An administrator acting in her best interest would need to investigate the validity and feasibility of that agreement and also whether it is in the best interests of the estate to have tenants, [R B] and any person sublet under Ms BN's agreement, living there rent-free.
52Further, in a variety of documents and in a number of different ways Mrs [B] has recently given financial authority to at least three individuals, possibly four, and for the purposes of accountability there needs to be a single source of authority. It is a complex estate, most particularly because of an outstanding allegation of stealing. Given that the various accusations involve substantial sums of money, there will need to be an impartial person who can research the relevant records and provide assistance to the police.
53The Board is concerned that the skill and memory deficits that Mrs [B] experiences and the numbers of people with authority to access her accounts leave her significant estate vulnerable to financial abuse or exploitation.
…
55Day-to-day management of the estate will include payment of household expenses, protection of the assets from persons who might seek to exploit Mrs [B] and making decisions on maturing investments.
56Representatives from The Public Trustee made submissions about the preference for appointment as an administrator over appointment and directions under an assigned enduring power of attorney. These included the need for clear authority in any period of 'fluctuating' capacity and having agreed periods for reporting and review. The Board accepted these submissions and considered the appointment of an administrator to be appropriate as opposed to giving directions under the pre-existing power of attorney (PA 70/2496), which had been assigned to the Public Trustee.
Appropriateness of an Administrator
57The Board acknowledged that Mrs [B] wished to appoint [R B] under yet another proposed power of attorney. Given that the Board has found that she lacks the requisite capacity to execute a new instrument, the Board considered the alternative proposal of appointing [R B] as administrator. This reflects the wishes expressed by Mrs [B] a number of times during the hearing.
58For the purposes of section 54(1)(d)(ii) of the Act, the Board considered [R B] is unsuitable as a potential administrator because he is a non-paying tenant in her home and therefore has a pecuniary interest in the management of her estate. Such an interest presents a conflict of interests for a potential administrator. Further, his stay in Australia is presently limited to a one-year Visa and although there may be means for extension, this poses some difficulties for the consideration of a three-year appointment."
Detailed reasons were provided by the Board on 3 August 2006 in accordance with the Act, s74.
Basis of appeal
The appellants seek to set aside the declaration concerning the appointment of K B dated 8 February 2006, the declaration concerning the instruments of revocation registered on 16 and 21 February 2006, and the order appointing the Public Trustee as administrator. The timing of the making and registration of the documents is relevant to the question of any assignment of power to the Public Trustee and the status of S in any consideration of the purported revocation of the power of attorney to K B made on 3 March.
The appellants advance five bases for their challenge to the determination of the Board, namely:
(1)that it lacked the power to make the orders whilst an enduring power of attorney was in force and that S had no right to challenge that appointment (grounds 1 and 1A);
(2)that the Board was not entitled in law to find that B did not have the mental capacity to grant an enduring power of attorney (grounds 8 and 10);
(3)that the Board was not entitled in law to find that B was unable by reason of disability to make reasonable judgments in respect of her estate (grounds 2, 3, 4, 5 and 10);
(4)the Board erred in law in appointing the Public Trustee as administrator in the light of evidence that R B was capable of undertaking that position (ground 7);
(5)that the Court ought grant leave to bring further grounds of appeal (grounds 11 to 16). Those grounds seek, in effect, to agitate questions of fact and exercises in discretion raised by the preceding grounds 2 to 10.
The appellants did not pursue grounds 6, 9 and 17.
Lack of power and/or jurisdiction
Grounds 1 and 1A as amended state:
"1The Board erred in law in holding a hearing in accordance with Div 1 of Part 10 of the Guardianship and Administration Act 1995 to review an enduring power of attorney on application by an attorney pursuant to s 33(1), Powers of Attorney Act 2000 when the applicant S, was not an attorney when she applied.
1AThe Board erred in law in appointing the Public Trustee as administrator of the estate of [B] when by s 53(1), Guardianship and Administration Act 1995 it was not competent for the Board to make that order when there was an enduring power of attorney dated 8 February 2006 (PA13041) in force."
The Board conducted concurrent hearings of applications under different statutes and for the appointment of a guardian under the Guardianship Act, Pt4, and declarations concerning enduring powers of attorney pursuant to the Act. The matters were linked and evidence received on each application was relevant to, and admissible on, the other. Given that eventually the Board made no new appointment of a guardian, no substantive question of the power of the Board arises in that regard. However it is necessary to consider the effect of each application on jurisdiction and the making of emergency orders.
An application for an emergency guardianship was made on 8 February 2006 which included a request for the making of an order permitted by the Act, s28. S had been granted a power of attorney in November 1995 and appointed as an enduring guardian on 18 October 2005. At that time Dr McDonald had assessed B as medically competent to make the appointment. Notwithstanding the purported revocation of the power of attorney on 3 February 2006 and the execution of a further document of appointment of a resident of the United Kingdom on 8 February 2006, not registered until 16 February, the emergency guardianship order made by the Board on 14 February followed the application made on 9 February 2006 which activated the jurisdiction of the Board. Any act undertaken by the resident of the United Kingdom in furtherance of the instrument dated 8 February had no legal effect until registration on 16 February, two days after the making of the "emergency order". None of the ensuing assignments, revocations or applications, altered that position. The Guardianship Act, s15(d), defines the functions of the Public Guardian as including:
"(d)… to protect the rights and interests of persons with a disability;
…
(g)to investigate, report and make recommendations to the Minister on any matter relating to the operation of this Act"
and requirement by s17:
"(1) The Public Guardian may investigate complaints and allegations concerning the actions of a guardian or administrator or a person acting or purporting to act under an enduring power of attorney.
(2) If requested to do so by the Board, the Public Guardian must investigate and report to the Board in relation to a matter the subject of an inquiry before the Board."
It was entitled through a delegated officer to apply to the Board for an order appointing a full or limited guardian in respect of a person with a disability who is of or over the age of 18 years (s19). The terms of the application made on 9 February clearly show that an officer had commenced an investigation to protect the interests of B before that date. The Board possessed jurisdiction. Here the appellants confuse "jurisdiction" with power. Even if the Board lacked jurisdiction or power as of the date of the grant or registration of the power of attorney on 8 February, it was entitled to make its emergency order on 14 February 2006. As and from that date at least, it was entitled to determine whether, at the time of its making, the donor B understood the nature and effect of the instrument (the Act, s30). It does not matter if essentially the Board decided not to appoint an enduring guardian since it was then entitled to have recourse to the provisions of the Guardianship Act at the request of the Public Guardian and/or the Public Trustee following the making of the emergency administration order made on 27 February and received on 27 March in accordance with the Guardianship Act, s65.
At the time the hearing commenced on 16 June 2006, the Board had jurisdiction and statutory power:
(1)to determine the validity of any instruments made by B in February 2006 under the provisions of the Act;
(2)to revoke any existing orders made under the Guardianship Act;
(3)to appoint an enduring guardian;
(4)to appoint an administrator with powers afforded by the Guardianship Act, Pt7.
The emergency guardianship order was renewed on 24 March 2006 and the emergency administration order on 27 March. The matter was listed for hearing on 11 April to accommodate the request by the appellants for the provision of a report from a Polish-speaking doctor. A report was not produced. The second hearing date, 19 May, was vacated at the request of counsel for the appellants to enable B to be examined and a report from a Victorian specialist, Dr Mendelson. The hearing was conducted on 19 June, by which time the emergency orders had expired. However counsel for the appellant had given an undertaking during the course of his application for adjournment, that the appellants would comply with the terms of those orders until hearing. The same member of the Board who had made the order of 26 February constituted the Board on 19 June.
The Board did not have unfettered power and was required to consider the various statutory provisions of complementary statutes, but was entitled to appoint an administrator through the operation of both the Act (through the operation of the Guardianship Act, s51(4)) and the Act itself. Statutory power afforded to an administrator by the Guardianship Act, s56, would supplant any power of attorney. To that extent, impugnment of the revocation or declaration of validity of the purported grant of power through the instrument made in favour of K B would have little, if any, practical import. The Guardianship Act, s53, provides:
"(1) Where a proposed represented person has granted an enduring power of attorney under section 11A of the Powers of Attorney Act 1934 or under section 30 of the Powers of Attorney Act 2000, it is not competent for the Board to make an administration order in respect of his or her estate so long as the enduring power of attorney is in force unless the order is made under Part 8.
(2) If any such enduring power of attorney relates to part only of the estate of the proposed represented person, the Board may make an administration order relating to any part of the represented person's estate that is not subject to the enduring power of attorney.
(3) Notwithstanding subsection (1), any action taken by a person purporting to act under an administration order before he or she has notice of an enduring power of attorney is valid and effectual."
The Board had jurisdiction and was entitled to hear both matters concurrently. It made an order under Pt8 which relevantly provides through s65(4)(c):
"(4) In the exercise of its powers under this section ¾
(c)the Board may make an administration order in respect of the estate of a person who is the donor of an enduring power of attorney in force under Part 4 of the Powers of Attorney Act 2000, if he or she is of or over the age of 18 years."
It is for these reasons that I ruled, during the course of the hearing, on the preliminary matters that the Board had both jurisdiction and power.
The power to make an administration order is limited by the Guardianship Act, s53. But the existence of an enduring power of attorney does not prevent the making of an administration order where an order is made in accordance with Pt8. Here such an order had been made. In addition the Board had power, once it had declared the enduring power of attorney made in February, invalid, to make an administration order.
Grounds 1 and 1A are dismissed.
Mental capacity and disability
Grounds 2, 3, 4, 5 and 10 state:
"2The Board erred in law in that no reasonable Tribunal could, on the material before it, determine that [B] was in need of an administrator;
3The Board erred in law in that no reasonable Tribunal could, on the material before it, determine that the appointment of an administrator was in the best interests of [B] ;
4The Board erred in law in that no reasonable Tribunal could, on the material before it, determine that the needs of [B] could not be met by other means less restrictive on her freedom of decision and action than the appointment of an administrator;
5The Board erred in law and no reasonable Tribunal could, on the material before it, when making orders appointing the Public Trustee as administrator with the powers and duties conferred by Div4 of Part 7 of the Guardianship & Administration Act 1995 determine that those orders were the least restrictive on the freedom of decision and action of [B] as is possible in the circumstances;
10The Board erred in law in not placing any particular weight upon the statements by lay witnesses because it found the question of [B's] capacity is essentially a legal question which relies upon medical evidence."
B, aged 79, was born in Poland and came to Australia in 1960 when she married B B. Her husband died in 1984 and she has lived in Launceston since 1960. In October 2005, B was admitted to hospital suffering from salmonella poisoning and bronchopneumonia. A person, who turned out to be E BN, the daughter of Mrs BN, who has played a significant part in these proceedings and whose conduct in relation to the financial dealings with money and property of B has been a cause of concern, presented to the hospital a document which gave her authority to make medical decisions for B. The hospital staff, on receiving advice that there was no valid appointment, suggested that S take on the responsibility of guardianship. An enduring power of attorney was executed and registered on 18 October 2005.
The Board was required to consider B's mental capacity (the Act, s33(2)) and inability to make reasonable judgments by reason of disability (the Guardianship Act, s51). It had ample and cogent evidence to determine those matters as it did. The Board dealt with those issues in the following terms:
"29The Board had the following medical opinions: A letter from Dr Razay, General Physician and Senior Lecturer in Geriatric Medicine, to Dr Radford, GP, dated 25 August 2005 concludes that Mrs [B] has dementia, possible Alzheimer's type, and discusses a deterioration in her memory in the past 2 years. He follows up this opinion in a letter dated 15 December 2005 showing some improvement in memory and her testing on immediate recall had improved from 18/30 to 21/30.
30A letter from Dr Radford dated February 2006 states:
'I have cared for Mrs [B] for nearly 2 decades and in that time have watched as her cognitive abilities have declined to the stage of the present. She has grown more demented over the past few years with paranoia often as a feature. She has been reviewed by Dr Razay, our local memory disorders expert, and he agrees with me that Mrs [B] has significant dementia. I believe her condition is such that she cannot make important decisions about her own care. Her ability to manage her finances is included in this statement'.
31On 29 March 2006, the Board faxed to Dr Radford a series of questions referable to the tests in section 30 of the Powers of Attorney Act 2000 seeking her opinion, those questions and her answers (underlined and in parentheses) provided on 5 April 2006 were as follows:
'In your opinion as at February 2006:
1 Did Mrs [B] have the ability to appreciate the nature and extent of her property? (No)
2 Could Mrs [B] have understood that she could have specified or limited the powers given to her attorney or given her particular instructions as to its operation? (No)
3 Could Mrs [B] have understood that, as a result of executing that document, her attorney would have full control over her property (eg sell real estate, pay bills, open and close bank accounts) in the event that she loses capacity? (No)
4 Could Mrs [B] have understood that, with capacity, she could vary or oversee the use of the power or revoke the power? (No)
5 Could Mrs [B] have understood that the power she gave her attorney would continue once she lost capacity and that she would not be able to oversee or supervise the power at that stage? (No)'
32Pursuant to a direction in the emergency order appointing the Public Guardian, the guardian obtained an assessment by Dr Emma Jane McCrum, Doctor of Psychology, clinical neuropsychology, in March and April 2006. She administered a test known as the Rowlands Universal Dementia Assessment Scale (RUDAS), which is a screening tool for dementia designed to minimise the impact of culture and education. On the basis of that and other assessments, Dr McCrum concluded that a diagnosis of dementia was feasible. She also concluded:
'The cognitive profile indicates it is likely that Mrs [B] will be unable to adequately consider major life decisions, ie evaluate the positive and negatives and analyse future consequences. A definite diagnosis of dementia can only be given on autopsy; however, loss of skill gives an indication of dementia when no medical cause can be found. These results do suggest a loss of skills, there is no medical cause noted in medical notes thus a diagnosis of dementia would be reasonable however it is difficult to differentiate between a diagnosis of the Alzheimer's type (DAT) or Frontal lobe dementia.'
33Because it had been suggested that Mrs [B] had made a substantial improvement after ceasing a particular medication, Dr McCrum re-assessed Mrs [B] on or about 1 June 2006 but reported to the Public Guardian that on that date she had found no reason to change her opinion.
34Despite an adjournment being granted to obtain such a report, no report by Dr Kulinski was submitted to the Board.
35On 8 June 2006, Associate Professor George Mendelson reported via the Board's standard Health Care Professional Report and a supplementary written report. Assoc Prof Mendelson is a consultant psychiatrist and a consultant in pain medicine. He concluded that Mrs [B] is not a person with a disability, but experiences a normal loss of memory function consistent with her age, a condition he called 'benign senescent forgetfulness'. In the standard questions in the Health Care Professional Report, Assoc Prof Mendelson reported that Mrs [B] could operate a bank account, pay bills and budget 'with assistance'.
36Assoc Prof Mendelson and Dr McCrum commented on each other's reports noting deficits in the other's opinions, such comments were surprisingly defensive.
37Mr Mackie submitted to the Board that, although Assoc Prof Mendelson's opinion deviated significantly from all other opinions before the Board, the Board should prefer his opinion for two key reasons. Firstly, that he spoke directly to Mrs [B] in Polish and, secondly, that he was more highly specialised than other practitioners who had provided reports.
38With respect to the first distinction, there has been no explanation provided to the Board as to why, if as asserted there has been no cognitive decline, a person who has conducted 40 years worth of friendships and financial transactions in English is now reliant upon a Polish language interpreter or a Polish speaker to effectively participate in medical appointments and the hearings of the Board."
It dealt with the differences in the opinions and conclusions reached by the treating medical practitioners and Dr Mendelson in its statement that:
"43The Board accepts that Professor Mendelson is eminently qualified and may well have made an accurate assessment of Mrs [B's] capacity on that day for all the questions that he asked her in a single appointment. However Doctors Radford and Razay made their assessments over significantly longer periods of time and with the opportunity to account for fluctuations in capacity over time.
44Doctor McCrum made her assessments over time and using a technique (RUDAS) that minimises the effect of cultural barriers. She undertook a follow-up assessment but did not deviate from her original finding.
45The Board is satisfied that, given that Drs Radford and Razay knew Mrs [B] for significant periods at or before the time of executing the relevant instruments related to the powers of attorney, their opinions have the most evidentiary weight for the purposes of section 33 of the Powers of Attorney Act 2000. Accordingly the Board prefers their opinions to Assoc. Prof. Mendelson's. Their opinions are complemented by the assessments and report by Dr McCrum."
In addition, it formed its own opinion based on its observation of B as a witness, stating:
47In making its finding about capacity for the purposes of section 51 of the Guardianship and Administration Act 1995, the Board also took into account Mrs [B's] behaviour in the hearing. Questions asked of Mrs [B] elicited answers or responses that were not relevant or not appropriate to the question. For instance when asked where her gold bullion was presently held, she answered 'Social Security?' When asked whether she had any investments, she said 'Money in the bank'. Neither answer was correct.
48While there may be explanations for her inaccuracy, she clearly had only a limited understanding of who was managing her cash and investments and where they were. More importantly, she also did not show a proportionate degree of concern about the fact that she did not know who was managing her assets and where they were. This seems inconsistent given the recent allegations promoted by Mrs [BN] that Mrs [S] who previously managed all assets for her, has stolen tens of thousands of dollars from her. It also seems inconsistent with assertions by Mrs [BN] about the level of distress that Mrs [B] has experienced as a result of that alleged stealing."
Disability and findings of fact
Grounds 2, 3, 4, 5 and 10 do not raise issues of law. They attack the conclusions. Grounds 2 and 3 are patently wrong on the facts presented to the Board. B was vulnerable and had been the victim of financial transactions which advantaged others. Ground 4 is simply a repetition of the general legislative provision relating to matters of medical treatment, financial control, powers of direction, enforcement, physical restraint and movement, removal consent and the like (eg, the Guardianship Act, ss27, 28, 30, 38, 40).
No such coercive powers were ordered. The powers given to the Public Trustee were protective of her financial assets and income. Grounds 4 and 5 ought be dismissed. Ground 10 lacks merit. The Board simply placed little weight on the evidence of persons who had been but short term and transient observers. Casual and general observations did not weaken the detailed evidence of officers of the Guardianship Board, treating doctors, medical records and the concern identified by Mr Verrell, the Senior Estate and Trust Manager of the Public Trustee. Ground 10 is dismissed.
Appointment of Public Trustee
Grounds 7 and 8 state:
"7The Board erred in law in that no reasonable Tribunal could, on the material before it, have concluded that [R B] was unsuitable as administrator;
8The Board erred in law in that no reasonable Tribunal could, on the material before it, determine that the Enduring Power of Attorney dated 8 February 2006 is invalid."
The Act, s33(4)(a), refers to the Public Trustee as an appropriate substitute attorney if, by reason of urgency, it decides to suspend the operation of an enduring power of attorney. The Guardianship Act, s54(1)(a), names the Public Trustee as an appropriate institution to act as an administrator of the estate of a person. It was necessary to have a professional and competent institution to investigate the financial affairs of B and dealings conducted in her name. Events proved such an investigation to be appropriate. On 27 February it had appointed the Public Trustee as an interim administrator pursuant to an emergency administration order pursuant to its powers granted under the Guardianship Act, s65(4), and reviewed that order on 24 March. It had received detailed and competent, if disturbing, advice from officers of the Public Trustee at the hearing of the concurrent matters. It had acted to protect the interests of B. The question is not whether the second appellant was unsuitable to act as an administrator, but whether it was preferable for the Public Trustee to protect the income and assets of a vulnerable person. But given the ground of appeal, it is appropriate for this Court to specifically uphold the findings of the Board. It was open for the Board to find that the second appellant was "unsuitable as a potential administrator". The Board relevantly stated:
"The Question of Need for an Administrator
51In respect of the issue of whether Mrs [B] is in a need of an administrator, the Board is satisfied that she is. No doubt Mrs [B is an inherently very generous person, but the Board is not satisfied that that explains why she entered into an oppressive tenancy agreement. An administrator acting in her best interest would need to investigate the validity and feasibility of that agreement and also whether it is in the best interests of the estate to have tenants, R B and any person sublet under [BN's] agreement, living there rent-free.
52Further, in a variety of documents and in a number of different ways Mrs [B] has recently given financial authority to at least three individuals, possibly four, and for the purposes of accountability there needs to be a single source of authority. It is a complex estate, most particularly because of an outstanding allegation of stealing. Given that the various accusations involve substantial sums of money, there will need to be an impartial person who can research the relevant records and provide assistance to the police.
…
Appropriateness of an Administrator
57The Board acknowledged that Mrs [B] wished to appoint [R B] under yet another proposed power of attorney. Given that the Board has found that she lacks the requisite capacity to execute a new instrument, the Board considered the alternative proposal of appointing R B as administrator. This reflects the wishes expressed by Mrs [B] a number of times during the hearing.
58For the purposes of section 54(1)(d)(ii) of the Act, the Board considered [R B] is unsuitable as a potential administrator because he is a non-paying tenant in her home and therefore has a pecuniary interest in the management of her estate. Such an interest presents a conflict of interests for a potential administrator. Further, his stay in Australia is presently limited to a one-year Visa and although there may be means for extension, this poses some difficulties for the consideration of a three-year appointment."
The first aspect of suitability was whether the second appellant had the skills and resources to properly investigate the circumstances surrounding the tenancy agreement and its validity, and to conduct an examination of the financial resources, especially given that a number of persons had been given authority to operate the bank account. On 27 February 2006, the date of the appointment of the Public Trustee, the sum of $3,450 was withdrawn from B's account with the Commonwealth Bank on an authority made in favour of the first appellant residing in the United Kingdom and Mrs BN. The sum of $1,000 had been withdrawn six days previous. Both sums were said to have been applied towards household accounts. There was good reason for the Board to be concerned about the probity of these withdrawals. The opening of a separate bank account by Mrs BN on 6 March, after Mrs BN had been made aware of the appointment of the Public Trustee as administrator and the subsequent direction to Centrelink to pay B's pension into that account, was quite properly a matter of concern and increased the need for professional control of B's financial affairs. For these reasons alone it could be said that the second appellant would be an unsuitable appointment. But there were additional negative and compelling reasons for that conclusion. The second appellant, the great-nephew of B's late husband, had not seen her since he was 10 years old. He arrived in Tasmania on 11 March and was present on the day when B was removed from the respite facility in circumstances which caused alarm to the staff of the institution and B's case officer. The evidence was that he travelled straight from the airport to the institution. The following exchange with the Chairperson of the Board would not have instilled any confidence in the Board that he had formed an independent view of B's circumstances:
"MS SMITH: So who made the request for you to come?
R B: My sister asked me to cover over here.
MS SMITH: And what date did you arrive?
R B: I arrived here – I landed here on March the 11th.
MS SMITH: That date's significant in the documents that we have because it's also the date of what's been described as a kidnap of [Mrs B] from the Scottsdale Respite Centre. [Mrs B] moved from the Respite Centre on that day. Were you involved in that?
R B: I went straight from the airport to the Manor nursing home, whatever.
MS SMITH: So what did that involve? You went to the Manor and what happened?
R B: Well we basically invited her if she would like to come home with us, you know. Back to her home and she agreed she would like to come."
Within three days he had become a signatory to B's account. He was living at B's home, but had not contributed to household expenses, regarding himself as a guest. He had no source of income in Australia. His visa was for 12 months and due to expire in March 2007. B stated incorrectly at the hearing that she believed that her great-nephew was a lawyer. In evidence he stated he had come to Australia at the request of his sister on 11 March. He had taken B to Melbourne for the purpose of a medical examination in relation to B's mental state and capacity. He stated that he was helping B "in exchange for staying at her place" and that the form of that help was "to keep her company and to deal with phone calls as they arise. To help out with cooking, maybe, and some cleaning but there's not to be done there [sic]". In relation to the question of his expertise, especially given the missing money, the terms of the tenancy and the concerns held by investigating officers and the Public Trustee, the second appellant advised:
"Well I managed my own household budget so I imagine it's much the same. In fact it is the same, as far as I can tell."
The Board was entitled on the evidence to conclude:
"58For the purposes of section 54(1)(d)(ii) of the Act, the Board considered [R B] is unsuitable as a potential administrator because he is a non-paying tenant in her home and therefore has a pecuniary interest in the management of her estate. Such an interest presents a conflict of interests for a potential administrator. Further, his stay in Australia is presently limited to a one-year Visa and although there may be means for extension, this poses some difficulties for the consideration of a three-year appointment."
Leave to appeal
The Act, s40(1) and (2), provides:
"(1) An appeal to the Court from a determination of the Board may be brought by the donor of a power, the attorney or a person ¾
(a)who appeared, or was entitled to appear, before the Board at the relevant hearing; or
(b)who, with the leave of the Board, would have been entitled to appear before the Board at the relevant hearing.
(2) An appeal may be brought ¾
(a) on a question of law, as of right; or
(b) on any other question, only with the leave of the Court."
The Guardianship Act, s76, is stated in similar terms, although subs(3) provides for a different time schedule in cases when reasons have been provided in accordance with that Act, s78. The appellants were persons who come within the provisions of the Act, s40, and, given the conduct of a concurrent hearing, within the ambit of the Guardianship Act, ss73(2)(a) and 76. The Attorney-General was given leave to intervene in these proceedings and joined as a respondent by an order of this Court made on 4 December 2006.
The Court accepts the primary contention of counsel for the Attorney that the appellants must establish a "seriously arguable case of error in a finding central and not merely peripheral to the determination": Slinko v Guardianship and Administration Tribunal (2006) 2 Qd R 279). I will consider the meaning of the various statutory provisions and whether conclusions relevant to those provisions were open to the Board, or whether findings were unsustainable or unsubstantiated on the evidence. I will follow the approach taken by the Full Court in Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354. This is not a rehearing.
Here the appellants seek leave to have grounds 11 to 16 considered as additional ones permitting examination of conclusions at large. Leave ought not be granted unless they replicate an error of law identified in the grounds which the appellants claim can be argued as of right.
Grounds 11 to 16 state:
"11The Board erred in determining that [B] was in need of an administrator;
12The Board erred in determining that the appointment of an administrator was in the best interests of [B];
13The Board erred in determining that the needs of [B] could not be met by other means less restrictive on her freedom and action than the appointment of an administrator;
14The Board erred when making the orders appointing the Public Trustee as administrator with the powers and duties conferred by Div4 of Part 7 of the . Guardianship & Administration Act 1995 when those orders were not the least restrictive on the freedom of decision and action of [B] as is possible in the circumstances;
15The Board erred in concluding that [R B] was unsuitable as administrator;
16The Board erred in determining that the Enduring Power of Attorney dated 8 February 2006 is invalid;"
Ground 16 of the application for leave is ambiguous and not specifically argued on the hearing of the appeal. In his written submissions in support of the claim of lack of jurisdiction, counsel contended that "the declaration of invalidity did not result in the power ceasing to have force. For that to occur the power needed to be revoked". An alternative interpretation of the meaning of this ground is that the Board was not entitled to find that the evidence and circumstances permitted a finding that B "did not have the mental capacity to make it" as provided for by the Act, s33(2)(a)(i). If the meaning is the former then the ground is not sustainable. The Act specifically refers to a declaration of invalidity because the precondition of capacity vitiated its making. The Board may suspend the operation of an enduring power of attorney (s33(4)) and may revoke by the appointment of an administrator (s33(3)), or vary its terms (s33(2)(a)). But a declaration of invalidity remains an option specified by statute. If the ground is intended to raise the latter, then it has been dealt with in the consideration of ground 8.
Leave is refused in respect of grounds 11 to 16.
Grounds 11 and 12 simply restate dissatisfaction with the outcome. It was the property of B which required protection. There were serious allegations that some of her money had been misappropriated, the terms of the tenancy whereby a family member of a person who claimed to be a friend and have B's interests at heart was oppressive and could never be justified on any reasonable, let alone, commercial, basis, and accounts submitted for payment when examined by the Public Trustee, showed the claim to be $5,000 more than could be justified. At least three persons had access to the bank accounts of B, an elderly woman with declining memory, but who retained a "trusting" and "generous" disposition. She was a person vulnerable to the self-interest of others.
Grounds 13 and 14 are meaningless. The powers granted to the Public Trustee were there provided for by statute, the Guardianship Act, s56. No alternatives other than the appointment of the second appellant as administrator were proposed. Given that there was good reason to doubt whether he could properly fulfil the duties required of an administrator in relation to the financial affairs and no definite indication that he could remain in Australia, there were no other viable alternatives. These grounds do no more than repeat the wording of the statute, without reference to the circumstances of this case. Ground 15 is a repetition of ground 7 and has been already dealt with.
Conclusion
The application for leave to appeal is dismissed. The appeal generally is dismissed.
2
1
1