KCP (Review of Enduring Powers)
[2017] TASGAB 17
•20 October 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KCP (REVIEW OF ENDURING GUARDIAN APPLICATION)
KCP (Review of Enduring Powers) [2017] TASGAB 17
REASONS FOR DECISION
Justin Otlowski (Chair)
Angela McKenzie (Member)
Lindi Wall (Member)
Hearing 20 October 2017
Review appointment of enduring guardian – capacity – importance of wishes of person with a disability – able to act as an enduring guardian – failure by enduring guardian to ascertain and give effect to wishes – vary instrument appointing enduring guardian by substituting the Office of the Public Guardian
Guardianship & Administration Act 1995 s 34(1)
An application has been made by TP for a review of an Enduring Guardian appointment by his father KCP. KCP appointed his daughter MP as his Guardian by an Instrument Appointing an Enduring Guardian dated 13 April 2017 which has been registered with the Guardianship and Administration Board No. XXXX.
The Application was heard on 20 October 2017. The Hearing was attended by Mr. Guy Knowler Solicitor who represented TP, TP, Mr Ray Smith the partner of MP and Ms Liz Love from the Office of the Public Guardian. A medical certificate was provided by MP that KCP was unable to attend the hearing.
Background Information
KCP is 94 years of age, date of birth 19 September 1923. KCP is widowed and has two children TP and MP.
It is a significant matter in this application that TP and MP are estranged. The intensity of MP’s feelings towards TP are such that MP advised a member of the staff of the Board by email 18 October 2017:
“it is just impossible for me to attend the hearing or be in any shared space with my brother due to his ill treatment of me in the past and I find all his troublemaking activities very traumatic”.
MP in the same email also said she would prefer not to be contacted during the hearing by telephone.
The reasons for TP making the application are that he had not had contact with his father since he spoke with him in August 2016 and did not know about his care and accommodation arrangements.
The parties have provided the Board with many documents which in turn have been provided to each of the parties. The Board requested, following an earlier directions hearing, a report from the Office of the Public Guardian about KCP’s wishes which was provided to the Board and is dated 6 September 2017. KCP has requested that that report be kept confidential and accordingly that report was not made available to the parties and will not be relied on by the Board save and except that if the contents of the report are revealed by other evidence the Board will disclose that part of the contents of the OPG report as it will no longer be confidential.
No oral evidence was given at the hearing but TP’s solicitor made submissions in writing and also spoke to those submissions at the hearing.
MP also made submissions in writing and at the hearing her partner, ST, made submissions on behalf of MP.
TP’s submissions
In summary the Applicant’s submissions were as follows:
a.KCP did not have the mental capacity to make the enduring guardian appointment.
b.KCP was susceptible to influence and the appointment of MP may have been induced by undue influence.
c.MP is conflicted because of her feelings towards TP in giving effect to KCP’s wishes.
d.MP has made statements which are contrary to KCP’s wishes.
e.That the Public Guardian should be appointed as KCP’s guardian.
MP’s submissions
MP submitted that KCP had capacity and that he could make reasonable judgements himself.
In response to an order made at the directions hearing that MP provide a record of all dealings and transactions made by her in her capacity as the Enduring Guardian a summary to the Guardianship and Administration Board prepared by her then solicitors Worrall Lawyers and dated 25 September 2017 was filed. In that document MP stated that she had not exercised the power of an enduring guardian and has responded to the views and wishes of KCP from time to time. MP contends that she has not acted in the capacity as an Enduring Guardian because KCP has capacity to make his own decisions.
KCP’s mental capacity
After a directions hearing on 23 August 2017 MP provided the Board with a Health Care Professional Report from Dr David Dunbabin dated 11 September 2017 (“the HCPR”).
Dr Dunbabin stated that KCP had a disability namely deafness and a mild cognitive impairment that had been evident for 2- 3 years and that the disability was static.
In response to the question “How does the disability affect the persons ability to make a reasonable decision about the circumstances you have outlined?” Dr Dunbabin answered: “Communication problems due to deafness. Acoustic STM difficulties may make new learning problematic. Susceptible to influence by competing family members.”
In answer to a question “Can the person make reasonable decisions about where they should live permanently or temporarily?” Dr Dunbabin answered “Able”. In answer to a question “Can the person understand the nature and effect of medical treatment?” Dr Dunbabin answered “Yes”. In answer to the question “Can the person make reasonable decisions about other matters eg relationships, visits by friends or relatives, employment?” Dr Dunbabin answered “Yes”.
In answer to the question “Do you have any other observations or comments that may be relevant” Dr Dunbabin answered:
“KCP has been dependent on children since death of wife in 2009. He is conflicted as to allegiance as to either child but acknowledges that they have difficulty agreeing. Would benefit from having independent advocate”.
The Board was also provided with two short reports from Dr Mark Ryan, KCP’s general practitioner, in which Dr Ryan stated that KCP was currently mentally capable of making decisions regarding his health and other financial issues. The Board was also provided with a patient history from the Health Centre where Dr Ryan is a doctor which shows extensive visits with KCP over the past 12 months.
An independent lawyer, Jencie Harrington, was arranged for KCP. Jencie Harrington wrote an email addressed to MP’s solicitor on 12 September 2017. In that email she mentions meeting with KCP on 11 September 2017 and she states:
“KCP was able to express his wishes succinctly and clearly to me yesterday.”
The Board accepts the opinion of Dr Dunbabin which is supported by the short report from Dr Ryan that KCP has capacity to make decisions about where he should live, who should visit him and his medical treatment. That opinion is supported by KCP’s solicitor Jencie Harrington’s comments.
Given that KCP had that mental capacity when seen by Dr Dunbabin in September 2017 it is a small step for the Board to make a finding that he had the capacity to appoint MP to make those decisions for him when he executed the Instrument appointing MP his Enduring Guardian in February 2017.
KCP’s Wishes concerning visits from TP
MP’s position in relation to visits from TP is set out in an email to a Board staff member dated Friday 21 July 2017. In that email MP stated:
“Please note something that I omitted to mentioned that my father, and for that matter myself are absolutely terrified of my brother who has exhibited intimidating and verbally abusive behavior to both of us. In particular there were several incidences in Melbourne two of which occurred in a nursing home. I wish to confirm that my father therefore advised me that he did not wish to receive visitors which included my brother.”
Further in the same email it was stated:
“I believe that Dad has made a personal decision not to receive visitors of any nature where he now resides due to his poor physical health and his desire to live a peaceful undisturbed existence in his twilight years without any further stresses”.
KCP’s solicitor Jencie Harrington in an email dated 12 September 2017 in relation to that issue stated:
“I am in a position to confirm the following:
a.KCP desires to have a relationship with both his children. I have not delved into the reasons for the disharmony between your clients. I have no need to do this at this time. My interests are focused on what is best for KCP and what he wants.
b.KCP is willing and happy to have visitors but in a limited and moderated level of occurrence.
c.KCP is to be given the option to accept or decline any visitor.
d.Visitation is to be limited to one person at a time unless specifically agreed to by KCP.
e.MP is to communicate KCP’s time commitments such as medical appointments with both the nursing home and TP whilst he is in Hobart. This will enable TP to appropriately manage his time with his father.
f.TP is to communicate with KCP at the nursing home and MP if he intends to take his father on outings outside the grounds of the nursing home. Both MP and TP must take guidance and accept that guidance from the nursing home, as to the suitability as to any activity or outing they intend to undertake with their father.”
As KCP’s wishes to have visits from TP have been revealed by Jencie Harrington’s email the Board can confirm that KCP expressed the same sentiment when he met with Liz Love from the Office of the Public Guardian.
The Board has no doubt that when the Application was made and when MP wrote the email to the Board dated 21st day of July 2017 that KCP’s wishes were that he would like to have a relationship with TP and have visits from TP.
Application of the Law following the Board’s findings about KCP’s mental capacity and his desire to have a relationship with TP
The application to review the appointment of enduring guardian is made under S34 of the Guardianship and Administration Act 1995 (“the Act”). Pursuant to S 34 (1)(a) the Board may find that the appointment of enduring guardian is invalid if the Board is satisfied that a) the appointer did not have the mental capacity to make it or b) it is contrary to the provisions of the Act or c) that the appointer was induced to make it by reason of dishonesty or undue influence.
No submission was made, nor could it be, that the instrument was contrary to the provisions of the Act. The Board has found that KCP had the mental capacity to execute the instrument of appointment and further finds, even though KCP is susceptible to influence, that the appointment was not induced by undue influence as there is no direct evidence of the exercise of undue influence.
Under S34 (1) of the Act the Board may revoke or amend the instrument of appointment of an enduring guardian if:
(a)The enduring guardian seeks revocation of the appointment; or
(b)The Board is satisfied that the enduring guardian is –
(i) Not willing or able to act in that capacity; or
(ii) Has in that capacity has not acted in the best interest of the appointor or has acted in an incompetent or negligent manner or contrary to the provisions of this Act.
There is no evidence that KCP seeks the revocation of the appointment of MP as his enduring guardian.
Further as the Board has made a finding that KCP has capacity to make decisions about where he should live, his medical treatment and who should visit him and accepting MP’s submissions that she has not acted in the capacity of guardian then S 34 (1)(b)(ii) cannot apply.
The Board notes however that the emails sent by MP to Barrington Lodge which were mentioned in the Applicant’s submissions suggest she may have been making decisions without discussing those decisions with KCP.
The Board however may revoke or amend the instrument of appointment if the Board is satisfied that the enduring guardian is not willing or able to act in that capacity.
The Board is satisfied that MP is willing but is not able to act in the capacity as a guardian.
The reason for this conclusion is that the Board has no doubt that KCP has for some time desired a relationship with his son TP. MP because of the intensity of her feelings towards her brother TP has been unable to ascertain and give effect to KCP’s wishes in that regard.
The fundamental principles which underlie the appointment or exercise of any power by a guardian under the Act are set out in S 6 of the Act. One of the guiding principles is that it is essential that a guardian is able to ascertain the wishes of a person with a disability and if possible to carry those wishes into effect.
For the reasons previously given KCP clearly wishes to have a relationship with his son TP and receive visits for TP. MP, for whatever reason, was unable to ascertain that those were KCP’s wishes and express them to TP. MP maintained that KCP did not want visits from TP when in fact he did want visits from TP and clearly expressed those wishes to Ms Liz Love from the OPG and his solicitor.
It is a matter of speculation why MP was not able to ascertain what KCP’s wishes were. It may have been the case that MP was aware of her father’s wishes but decided not to act on them or it may have been the case that her KCP was afraid to tell MP his wishes because he knew she would not agree with them. There are many other possibilities.
The Board makes no finding about why MP was unable to ascertain KCP’s wishes. All that matters is that it is clear that MP was unable to ascertain and give effect to KCP’s wishes and therefore the Board is satisfied that MP is not able to act as KCP’s guardian.
The order of the Board
That enduring guardian XXXX is varied by substituting the Public Guardian as the enduring guardian of the represented person in place of MP.
Justin Otlowski Lindi Wall Angela McKenzie
Member Member Member
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