KCP (Review of Enduring Powers)

Case [2017] TASGAB 14

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

KCP (REVIEW OF ENDURING GUARDIAN APPLICATION)

KCP (Review of Enduring Powers) [2017] TASGAB 14

REASONS FOR DECISION

Justin Otlowski (Chair)
Angela McKenzie (Member)
Michael Stoddart (Member)

Hearing 18 August 2017

Directions hearing - lack of information – request for report from Office of the Public Guardian – order that enduring guardian obtain a health care professional report and provide record of dealings in capacity as enduring guardian

Guardianship & Administration Act 1995 s 17(2), 35(4)

  1. An application has been made by TP for a review of an Enduring Guardian appointment concerning 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.  KCP is 93 years old and the papers filed with the Board contained limited information.

  2. The Application was listed before the Board on 18 August 2017.  The Hearing was attended by Mr. Guy Knowler Solicitor who represented TP, Mr. Trevor McKenna Solicitor who represented MP, TP and Liz Love from the Office of the Public Guardian.

  3. The matter proceeded as a Directions Hearing as the Board formed the view that the matter was not ready for a hearing for the following reasons.  The papers filed contained no information about the wishes of KCP and whether MP had in fact been making decisions for her father in her capacity as an enduring guardian.  There was also no Health Care Professional Report (“HCPR”).  There were two very short medical reports from KCP’s General Practitioner Dr Mark Ryan but the detail provided in the short reports was far short of the level of detail required in a HCPR. 

  4. The Board made Interlocutory Orders for the purposes of ascertaining KCP’s wishes and to obtain more information about his current circumstances in terms of accommodation and the level of services being provided to him. The Board made an Order under Section 17(2) of the Guardianship and Administration Act 1995 (“the Act”) requesting a report concerning these matters from the Office of the Public Guardian.

  5. The Board has the power under s 35(4) of the Act to direct an enduring guardian in respect of any matter and the Board also made an Order requiring the Enduring Guardian to provide the Board with details of any act taken by the Guardian in that capacity. This information is necessary as the Board cannot review any act taken by MP in her capacity as KCP’s enduring guardian until the Board is informed about what, if any, decisions have been made by MP in that capacity.

  6. The Board also made an Order that the Enduring Guardian provide a HCPR from a medical specialist due to the lack of detailed evidence about KCP’s medical conditions and his capacity.

  7. Before the Orders were made the Board sought the views of the persons attending the hearing and none of the persons present had any objection to the proposed orders other than as to the time required to comply with them.

  8. The hearing of the Application was adjourned sine die pending receipt of the information requested in the Interlocutory Orders.

On 18th August 2017 the Board Ordered

Upon hearing an application to review an Enduring Guardian Instrument dated 4th May 2017 (XXXX) made by KCP (hereafter “the represented person”) appointing MP as his guardian.

THE BOARD ORDERS

  1. That the Public Guardian investigate  and provide a report to the Board to include;

    (i)KCP’s wishes about who should be his guardian?

    (ii)What level of care is being provided to KCP and is it and his current accommodation appropriate to his needs?

    (iii)Does KCP wish to receive visits from family and are there any family members he does not wish to see?

    (iv)Is MP making any decisions on his behalf about health care, support services and accommodation?

    (v)If MP has made decisions about those matters were they reasonable and in KCP’s best interest?

    (vi)Does KCP wish any part of the report to be confidential?

    The Report is to be received within 21 days by the Board.

  2. The Enduring Guardian is to provide to the Board a Health Care Professional Report from a specialist within 28 days, or such other time as agreed by the parties.

  3. The Enduring Guardian is to provide to the Board an accurate record of all dealings and transactions made as the Enduring Guardian within 28 days.

  4. The application is adjourned sine die.

DATED this 18th day of August 2017. 

Details
AGLC
KCP (Review of Enduring Powers) [2017] TASGAB 14
Case
[2017] TASGAB 14
Decision Date

CaseChat Overview and Summary

In the matter of KCP, the court was presented with an application concerning the management and review of an Enduring Power of Attorney. The applicant sought clarification and investigation into the actions of the enduring guardian, MP, as well as the current state of KCP’s care and wishes regarding his guardianship and healthcare. The case was heard before the relevant Australian tribunal.

The legal issues before the court included the adequacy of the information provided by the enduring guardian and whether there was sufficient evidence to determine if MP was acting in KCP's best interests. The court also needed to decide if the enduring guardian had made reasonable decisions regarding KCP's health care, support services, and accommodation, and if KCP's wishes about these matters were being respected.

The court found that there was insufficient information available to make a determination about the actions of the enduring guardian. It was necessary to obtain further details about KCP's wishes and current living situation. The tribunal ordered the Public Guardian to investigate and report on various aspects of KCP's care, including his wishes about guardianship, the appropriateness of his current care and accommodation, and the decisions made by MP on his behalf. Additionally, the enduring guardian was directed to provide a health care professional report and a record of their dealings in their capacity as enduring guardian.

The court's orders included a directive for the Public Guardian to submit a report within 21 days, the enduring guardian to provide a health care professional report and a record of their transactions within 28 days, and the application was adjourned indefinitely. This decision ensures that KCP's best interests will be fully considered and that any actions taken by the enduring guardian are both reasonable and in line with KCP's wishes.

Orders

Orders of the court

THE BOARD ORDERS

1. That the Public Guardian investigate and provide a report to the Board to include;

1. (i) KCP’s wishes about who should be his guardian?

1. (ii) What level of care is being provided to KCP and is it and his current accommodation appropriate to his needs?

1. (iii) Does KCP wish to receive visits from family and are there any family members he does not wish to see?

1. (iv) Is MP making any decisions on his behalf about health care, support services and accommodation?

1. (v) If MP has made decisions about those matters were they reasonable and in KCP’s best interest?

1. (vi) Does KCP wish any part of the report to be confidential?

1. The Report is to be received within 21 days by the Board.

2. The Enduring Guardian is to provide to the Board a Health Care Professional Report from a specialist within 28 days, or such other time as agreed by the parties.

3. The Enduring Guardian is to provide to the Board an accurate record of all dealings and transactions made as the Enduring Guardian within 28 days.

4. The application is adjourned sine die.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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