KD (Procedure)
[2012] TASGAB 11
•28 May 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KD – Interim decision regarding the appointment of an Australian legal practitioner to assist the Board in proceedings
Neutral citation: KD (Procedure) [2012] TASGAB 11
REASONS FOR DECISION
Anita Smith (President)
Kim Barker (Member)
Gerard Dibley (Member)
28 May 2012
Procedure – Appointment of person to assist the Board - Questions of jurisdiction, capacity, relevance of evidence
Guardianship and Administration Act 1995 s.10
This decision relates to the Board’s consideration of whether a person should be appointed to assist Board in proceedings pursuant to section 10 of the Guardianship and Administration Act 1995.
On 10 August 2011, the Board received an extensive application to review enduring powers of attorney executed by GD and KD appointing their son, MD as their sole attorney on 9th November 1998. The application was brought by another son, DD, who appears to have the support of their two other sons, QD and HD.
GD has since died. Essentially, the applicant alleges that the attorney has, since 1999, participated in the depletion of the donors’ assets to his own advantage. The attorney states that the impugned transactions are irrelevant to his role as attorney which only commenced in May 2011. The attorney states that all prior transactions were those of persons with capacity and therefore beyond the jurisdiction of the Board.
On 13 September 2011 the Board provided the attorney with a copy of the application and asked that the attorney respond to a series of questions raised in the application. The attorney provided a written response to the application on 3 October 2011. On 20 September 2011 the Board sought additional medical information from Dr Robert Walker about the donor’s capacity. Dr Walker responded to the Board on 25 October 2011.
On 17 October 2011, the Board notified the parties that records provided by the attorney will require assessment by a professional and independent auditor and that costs of that audit would be determined in accordance with section 80 of the Guardianship and Administration Act 1995. On 27 October 2011, on advice from the proposed auditor, the Board wrote to the applicant requesting that the applicant specify the time period for which an audit may be required. The applicant responded that transactions from 1999 and more particularly from 2004 onwards are relevant to his application. The attorney, however, states that his role has only been active since May 2011.
On 12 January 2012, the Board convened a preliminary hearing to determine questions of jurisdiction regarding the application. The Board did not determine jurisdiction on that occasion, but provided a list of directions to the applicant and the attorney regarding the preparation for hearing in this matter as follows:
1. That the hearing of the question of the Board’s jurisdiction to hear this application be adjourned to a date to be fixed.
2. That the applicant shall, within 30 days (i.e. by close of business on 14 February 2012), deliver to the Board a list of all relevant documents to which the applicant seeks access using the Board’s powers pursuant to section 11(11) of the Guardianship and Administration Act 1995.
3. That the applicant shall, within 30 days (i.e. by close of business on 14 February 2012), deliver to the Board further and better particulars of the allegations against the attorney.
4. That the Board shall arrange for an assessment of the donors’ capacity and past medical records by an appropriately qualified specialist.
5. That the attorney shall have 30 days after the delivery of the documents arising from directions 1, 2 and 3 above to provide written response to the Board.
Following the directions given by the Board at the jurisdiction hearing on 12 January 2012, the Board has received:
A package from ND on 27 February 2012 containing:
(a) A submission on the jurisdiction of the Board
(b) Statement of evidence of DD(c)Further and better particulars of the allegations made against the attorney
(d) List of documents to which access is sought
A response from MD on 3 April 2012.
Hence directions (2), (3) and (5) have been completed by the parties. Owing to the death of GD, the Board had not progressed the report by Dr Morrissey but will seek historical records to ascertain whether there is any documentary evidence to support a finding about the date at which KD lost capacity.
The submissions received from the parties do not address the issue of jurisdiction to the satisfaction of the Board. Additionally, the Board’s requests from the applicants for certain documents and a response from the attorney that such documents ought to be obtained from relevant Commonwealth agencies. The Board has made requests of the Commonwealth agencies, but if such request is denied, will await further submissions from the parties as to the method for obtaining these documents.
On 24 April 2012 the Board informed parties that, owing to the complexity of the allegations, it may be necessary to appoint an Australian legal practitioner pursuant to section 10 of the Guardianship and Administration Act 1995 to assist the Board with these proceedings. The Board informed parties that such assistance would be sought from the Crown Law office and may be retained on a commercial basis. Hence, the Board may seek to recover costs at the conclusion of this action from either one of the parties or from the donor’s estate.
Both the applicant and the attorney objected to the appointment of a legal practitioner pursuant to section 10 on the basis of cost.
These are the Board’s concerns:
(a) The donor is unrepresented in these proceedings.
(b) This matter has been on foot since August 2011 and very little progress has been made towards determining jurisdiction or refining the issues due to the parties’ responses.
(c) Before an independent audit can be conducted, the Board needs to be in a position to direct the auditors as to which records are subject to audit (i.e. all records of any transactions between the attorney and the donors – regardless of their status as donor and attorney, son and parents, directors in a company - or whether the audit only relates to the enduring phase of the power and the role of the attorney).
(d) Before the Board can direct as to the scope of the audit, it needs to determine what jurisdiction it has to consider transactions prior to the enduring phase of the power and the role of the attorney.
(e) The attorney is asserting that certain records ought to be obtained from Federal Government agencies rather than from himself. The Board needs independent advice as to whether (i) the records requested by the applicant will assist in determining the application, (ii) whether the attorney’s assertion is correct and (iii) any responses from the Federal Government agencies require further action.
(f) Progress in obtaining evidence in this matter is hindered by a lack of clear and transparent records, capricious compliance by the attorney with requests for information, hostility between the parties and a reluctance by all parties to expend costs towards final determination of the matter.
(g) The jurisdictional issues presenting in this matter have not been the subject of any previous decisions by the Board and require careful consideration, from a broad perspective, as to the determination of allegations as to the attorney’s behaviour where such alleged behaviour is beyond the scope of his or her duties as attorney.
In light of the above, and given both the complexity of the matters raised in the application and the effect of the hostility between the parties on the efficient determination of this matter, the Board considers it is appropriate to appoint an Australian legal practitioner from Crown Law to assist the Board in these proceedings. In the event that a legal practitioner is unavailable from Crown Law, the Board will reserve the right to approach a private legal practitioner to provide that assistance and will recover the costs after determining costs pursuant to section 80 of the Act at the conclusion of proceedings.
Anita Smith Kim Barker Gerard Dibley
PRESIDENT MEMBER MEMBER
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