KJO (Administration)

[2009] TASGAB 12

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

KJO on the application of THE ROY FAGAN CENTRE

Neutral citation:  KJO (Administration) [2009] TASGAB 12

REASONS FOR DECISION

Anita Smith (President)

Emergency application for appointment of an administrator – existing enduring power of attorney – attorney alleged to be unsuitable – circumstances requiring a hearing
Guardianship and Administration Act 1995 s 65

1. On 2 June 2009 the Board received an application regarding KJO who is a 73 year old woman recently admitted to the Roy Fagan Centre.  Dr Cheah of the Roy Fagan Centre sought the suspension of an enduring power of attorney appointing her son, UO, as attorney and the appointment of an administrator on the grounds that the attorney has a psychiatric disorder with a history of manic episodes and has had a recent admission to the Royal Hobart Hospital. 

2. The application noted that KJO’s recently deceased husband had had a mitigating influence on UO’s behaviour but without his influence, UO was unlikely to be a reliable attorney.  In discussions with Board staff, the applicant also expressed concerns about who is handling the late UO’s estate and therefore who is protecting KJO’s interest in that estate.

3. Dr Cheah also sought the appointment of a guardian to restrict UO’s attempts to take KJO out of the Centre against the advice of the treating team.

1. The Board obtained a copy of PAxxxxx which is appears to be a duly executed and registered enduring power of attorney dated in May 2008 appointing KTO (deceased) and UO as her attorneys. 

2. The Board is satisfied, for the purposes of section 65 of the Guardianship and Administration Act 1995 that KJO may have dementia and that the dementia may render her incapable of making reasonable judgments about her estate.  A key factor in this decision is that her late husband and her son have been acting in the enduring phase of an enduring power of attorney for some time.  It is also significant that the applicant who asserts that she has a disability and is incapable of making reasonable financial judgments is a psychiatric registrar and qualified to make that assessment. 

3. The Board’s investigation and liaison officer telephoned the attorney on 3 June 2009.  He informed UO of the application and its allegations against him.  UO expressed that he was shocked.  He said that he had not been informed of any concerns by the Roy Fagan Centre staff.  He acknowledged recent treatment for a mental illness and described himself as a retired teacher of English and a business person of 20 years experience, with 70% equity in his home, no credit card and an untroubled history.  He also denied attempting to take KJO out against advice of staff, explaining that he wants her to see an alternative nursing home and that maybe this had been misinterpreted. 

4. UO impressed the investigation and liaison officer as having a reasonable grasp of the duties of an attorney and sounding entirely reasonable.  UO undertook to speak with Roy Fagan Centre staff and to seek the advice of a solicitor.  He also invited the investigation and liaison officer to contact his sister, HQ, who would vouch for him.

5. HQ confirmed that when UO is well, there would be no reason for concern at him having control of his mother’s money under an enduring power of attorney.  She also stated that he is currently well.  She said that when he has been unwell it was his own, not his mother’s money, that was at risk even though there have been circumstances where he has had opportunity to access their mother’s funds. 

6. The Board noted that the applicant was, in part, relying upon reports by HQ.  However HQ provided a different picture when speaking with the investigation and liaison officer. 

7. The Board believed that the emergency application raised issues that ought to be aired during a hearing and that, at such a hearing, an outcome may be that the Board may make orders regarding the enduring power of attorney and the appointment of an administrator.  However, the application raised serious concerns about the attorney who has a right to procedural fairness.  Those concerns had been the subject of different and plausible explanations by the attorney and his sister.  It was considered more appropriate to hear those concerns aired and defended in a hearing than to make a decision on the papers.

8. Accordingly, the Board declined to grant the emergency application.

   Anita Smith

   PRESIDENT