LKC (Review Enduring Powers)
[2008] TASGAB 14
•2 October 2008
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
Neutral Citation: LKC (Review Enduring Powers) [2008] TASGAB 14
REASONS FOR DECISION
Anita Smith (President)
Sue Hill (Member)
Kellie Ashman (Member)
Guardianship – enduring guardianship – Queensland instrument fails for non-registration – capacity - review of decisions of guardian – alleged non-compliance with conditions of appointment – advice and direction sought by guardian – guardian’s preference for professional aged care over care by inexperienced relatives
Powers of attorney – enduring powers of attorney – competing instruments in different jurisdictions – one power inactive – irreconcilable differences between putative attorneys – possibility of attorney needing to fund decisions of guardian with whom he disagrees – appointment of a neutral administrator
Guardianship and Administration Act 1995- ss 6, 31(3), 32(2), 34, 54
Powers of Attorney Act 2000 – ss 33(2) and (3)
LKC is an 86 year old widow and mother of two who, until recently, has been supported to live in her own home in Northern Tasmania. In September 2002 she appointed her son, NC, as her enduring attorney (giving him control over financial matters) and later appointed him as her enduring guardian (giving him control over personal matters) in December 2003. However, unknown to NC until recently, she appointed her other son, QC, in a document dated 25 September 2005 that was executed and registered in Queensland. That later instrument appointed QC as attorney for both financial and personal matters. The possibility that LKC now requires full time residential care as a result of her disabilities has thrust NC and QC into significant conflict regarding the care and support of their mother.
That conflict has resulted in a number of applications to the Board:
(i)QC has applied for the enduring guardianship to be revoked because he alleges that NC has not acted in the best interests of the appointor.
(ii)NC has applied for advice and direction for the most appropriate course of action as guardian and attorney.
(iii)Tasmanian Perpetual Trustees, who are named as the alternative attorneys in the instrument appointing NC as an attorney are seeking guidance about the validity of their appointment in light of the instrument executed in 2005 in Queensland.
These applications were heard in sequence on 3 October 2008.
The Enduring Guardianship:
LKC has lived alone in her home with support from a Community Aged Care package. NC and his wife, BC, have been involved for about 7 years in coordinating that level of care together with arranging meals and medications. LKC’s General Practitioner, Dr Jane Fuller, and Consultant Physician, Dr Andrew Maclaine-Cross agree that she has dementia and that this has affected her ability to live independently despite the maximal supports that were in place to allow her to remain in her home. Dr Maclaine-Cross reports that LKC is ‘affable and eager to please’ but has ‘no mental capacity to think critically’. He believes her incapable of making reasonable decisions about where she should live temporarily or permanently.
In June 2008, NC made a decision to have LKC admitted to Hospital awaiting a suitable placement at a nursing home. At that stage QC was overseas. When QC returned to Australia he informed NC that, having sold their interstate home, he and his wife would move to Tasmania to care for LKC in her home. NC has not accepted that offer and LKC remains in the Hospital.
In his application dated 22 August 2008, QC did not assert that the 2005 Queensland instrument gave him authority as a guardian for his mother. He made the following statements in the application: ‘My brother NC is the current guardian’ and ‘On arrival, I have been informed I cannot take her home and care for her, as I have no legal right and my brother rejects my request to take Mum home’ (emphasis added).
The Queensland power of attorney includes personal and financial authority for the named attorney. However it has only been registered in Tasmania with the Recorder of Titles as an enduring power of attorney and therefore fails to meet the criteria for an effective enduring guardianship required by section 32(2)(d) of the Guardianship and Administration Act 1995. Despite the statements in his application, QC and his wife expressed surprise at the hearing that this should be the case.
To succeed in his application to revoke the guardianship under section 34 of the Act, which the Board dealt with first, QC must establish that NC has not acted in LKC’s best interests, or has acted in an incompetent of negligent manner contrary to the provisions of the Act. QC asserted that his brother NC had failed to act in LKC’s best interests in two ways:
(i)Poor housekeeping by NC at house leaving LKC exposed to risks, and
(ii)Failure to adhere to the conditions set out in the enduring guardianship appointment.
The allegation of poor housekeeping at house consisted of poor attention to the consequences of LKC’s incontinence and general safety issues such as allowing moss to grow on an external pathway, putting LKC at risk of slipping, and laying an extension cord to a dryer across an area accessed by LKC, creating a trip hazard and issues with the care and control of a pet. These issues were noted by QC in his written submissions and in his evidence at the hearing. However, none of the risks resulted in actual harm to LKC and none of the witness (who included family members and representatives of the Community Care and the Aged Care Assessment Team) was able to indicate any actual effect that these omissions had upon LKC’s best interests.
The Board found that none of the events or omissions prior to LKC’s admission to hospital reached the threshold required by section 34(1)(b)(ii), that is: none of NC’s actions or omissions prior to admission were negligent or incompetent or contrary to LKC’s best interests or contrary to the provisions of the Act.
QC secondly alleged that NC had not adhered to the following condition of his appointment:
(a) “I want to stay in my own home as long as possible and am able to.”
QC argued that NC’s decision to admit LKC to Hospital awaiting a nursing home placement runs contrary to this condition and is not in her best interests. It is possible, he argued, for her to remain in her own home because QC and his wife will move into that home and provide 24 hour care for her. There are two flaws to QC’s argument in this regard.
Firstly, LKC’s appointment of an enduring guardian had other conditions that throw light upon her meaning in condition (a) above. LKC’s other relevant condition of appointment stated:
(b) “If nursing home care is needed I want to stay in Northern Tasmania region”
It is apparent from condition (b) that condition (a) was not an absolute condition. It is also apparent that LKC had given thought to the prospect that nursing home care may be needed and that she preferred nursing home care in the said area. In the Board’s view, condition (b) gave authority to the guardian to determine the stage at which nursing home care was needed.
In light of condition (b) then, the Board needs to examine whether NC’s decision that LKC had reached the stage of needing nursing home care was in LKC’s best interests and, if so, whether his refusal to accept QC and KC’s offer to provide 24 hour care was not in her best interests. NC’s decision to admit LKC to Hospital awaiting placement in a nursing home is consistent with the advice of her medical practitioners and the findings of the Aged Care Assessment Team. It is evident, even from QC’s application that 24 hour care is warranted for LKC. Therefore, the Board accepts that admission to the hospital was in LKC’s best interests.
It is NC’s decision not to accept QC and KC’s assistance that has caused the most contention. QC argued that because his offer to provide care provided an alternative option for LKC to remain at home, NC ought to be bound to accept it in favour of nursing home care. In the Board’s view, the second flaw in QC’s argument is that NC was not bound by conditions (a) and (b) to accept QC and KC’s offer to provide 24 hour care at home. As a guardian, NC was bound to consider QC’s option but not necessarily to accept it. The conditions of the enduring guardianship appear to require the guardian to weigh up the ‘possibility’ of remaining in her own home against the ‘need’ for nursing home care. In NC’s view, even considering QC and KC’s offer, it was not possible for LKC to remain at home and she did need nursing home care.
NC offered the following reasons for not accepting QC and KC’s offer:
(i)NC has a preference for care to be provided by professionally trained persons and QC and KC do not have professional training or experience in the provision of aged care,
(ii)NC believes his brother, QC, has the wrong temperament to provide care, and
(iii)The relationship between QC and NC has been so poor for such a long period of time that should QC and KC move into LKC’s home, it is unlikely that BC and NC could offer the same level of support and contact to LKC as they currently do.
UL from Community Aged Care provider indicated to the Board that provision of 24 hour care can place enormous strain on persons who are not trained or experienced in aged care. QC and KC are offering an experiment and no-one can know whether that experiment will be successful or, if so, for how long. The Board took the view that NC’s decision appeared to be a reasonable decision for a guardian to make. He had considered QC’s offer of assistance and declined it for reasons associated with LKC’s best interests.
Although section 34 only requires an examination of LKC’s best interests the Board also considered LKC’s wishes for the purposes of adhering to the principles in section 6 of the Act. The Board took the conditions of the enduring guardianship to be the clearest and most reliable statement of LKC’s wishes. Medical advice indicated that, by reason both of a naturally agreeable disposition and her disability, LKC would now be likely to agree with whoever was with her at the time. QC gave evidence that LKC strongly wished to return home. However the Board’s Manager of Investigations, Anne Perks, reported that LKC had also told her that she wished to return home but also that she ‘answered with a very definite “No”’ when asked whether she wanted QC to care for her.
The Board dismissed QC’s application to revoke the enduring guardianship. As guardian, NC has made decisions that QC clearly disagrees with but they do not appear to be decisions that are contrary to LKC’s best interests, nor incompetent, negligent or contrary to the provisions of the Act.
The Board notes that NC was conscious of the conflict between himself and his brother and formally sought advice and direction about his role as guardian. He also offered his resignation (at the hearing) should the Board decide that QC ought to be allowed to provide care for his mother in her home. As the circumstances of NC’s application for advice and direction were the same as the circumstances that promoted QC’s application, the Board did not hear that application separately but incorporated its findings in the determination. Accordingly, the Board indicated to NC, pursuant to section 31(3)(a) of the Guardianship and Administration Act 1995, that it approved of his plan to ensure that his mother stayed at Hospital until a suitable nursing home placement could be found in the Northern Tasmania area as being consistent with the both terms of the enduring guardianship and with LKC’s best interests. In light of that approval NC did not resign as enduring guardian.
The Enduring Power of Attorney:
The instrument executed in 2005 in Queensland appointing QC as an enduring attorney also purports to revoke all former powers. Therefore if valid, it renders NC’s appointment as attorney invalid. The Board considered the medical evidence as to the likelihood of LKC having capacity in 2005 at the time of the execution of the later instrument. LKC did have dementia at that time and, according to their records, had already been in contact with support agencies such as the Aged Care Assessment Team. However, none of the opinions was unequivocal in finding that LKC did not have the capacity to understand the nature and effect of an enduring power of attorney in 2005. Therefore the Board did not declare that instrument invalid by reason of the incapacity of the donor.
NC and QC agreed that NC has had financial control up until the date of the hearing. Although it is possible that the appointment of QC was validly executed and that appointment has been registered with the Recorder of Titles, QC has not operated that under the authority of that document. Should QC decide to assert the authority of the later instrument it would mean taking over the management of accounts from NC.
The Board considered whether it would be possible for NC and QC to cooperate to the extent of NC handing over financial control to QC. The brothers appear to have irreconcilable differences. Therefore, the possibility of a smooth handover of financial control between attorneys appears slim. Further, if NC’s decision as enduring guardian to place his mother in a nursing home comes to pass, a number of significant financial arrangements will need to be made.
If QC remains as enduring attorney and NC as enduring guardian then it will not only require cooperation between two hostile brothers, but also for QC to make financial arrangements to support an accommodation decision that he clearly disagrees with. This possibility appears to the Board to include too many tribulations, especially considering the level of hostility displayed at the hearing, to imagine that it will work in LKC’s best interests.
Given that QC has not actively used the Queensland instrument to control LKC’s affairs and given its likelihood to promote the conflict between her offspring, the Board decided it was in LKC’s best interests to revoke the Queensland instrument and all registered instruments purporting to be an enduring power of attorney and to appoint an administrator instead. Accordingly all instruments were revoked by the Board and an administrator appointed pursuant to section 33(2)(f) and section 33(3) of the Powers of Attorney Act 2000.
The Board considered that the appointment of an impartial and independent administrator reflects LKC’s best interests at this point. We also considered that her appointment of Tasmanian Perpetual Trustees as an alternative attorney in the 2002 enduring instrument was an indication of her wishes. Therefore, given that pursuant to section 54(1)(c) of the Guardianship and Administration Act 1995 the Board can assume a private trustee company to be an eligible administrator, the Board appointed Tasmanian Perpetual Trustees as LKC’s administrator.
The Board recorded its orders as follows:
Applications Regarding the Enduring Guardianship:
After hearing an application by QC to revoke the Enduring Guardian dated 15th December 2003 made by LKC (hereinafter ‘the donor’) appointing NC as her guardian (hereinafter ‘the guardian’)
THE BOARD ORDERS the application be dismissed
AND FURTHER after hearing an application by the guardian for advice and direction pursuant to s31(1) of the Guardianship and Administration Act 1995 the Board hereby approves the proposed acts of the guardian, namely that the donor shall reside in Hospital until a suitable room becomes available for her in a Registered Aged Care Facility in the Northern Tasmania area.
Applications regarding the Enduring Power of Attorney:
After hearing an application in relation to Enduring Powers of Attorney dated 12 September 2002, and 25 September 2005 (hereinafter ‘the powers’) made by LKC (hereinafter ‘the donor’) appointing NC and QC as her attorneys
The Board was satisfied (i) that it is not in the donor’s best interests for the powers to continue, and (ii) that the donor is unable to make reasonable judgements in respect of her estate and is in need of an administrator
THE BOARD ORDERS
That the powers are revoked from the date of this order.
That Tasmanian Perpetual Trustees be appointed administrator of LKC.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the administration order remains in effect to 2 October 2011.
Statement of Reasons Delivered October 2008.
Anita Smith
PRESIDENT
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