LU– Application for Review of Enduring Guardian.
[2013] TASGAB 10
•19 April 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE
LU– Application for Review of Enduring Guardian.
LU (Review Enduring Powers) [2013] TASGAB 10
REASONS FOR DECISION
Colin McKenzie (Deputy President)
Abigail Bindoff (Member)
Mary Davies (Member)
Date of Hearing: 19 April 2013
Review of enduring guardianship– guardian not willing to act that capacity - revocation or amendment of instrument of appointment– high level of conflict between parties
Administration – direction to consult with existing financial adviser
Guardianship and Administration Act 1995 s34
On 20 March 2013 the Board received an application made by BU in respect of his father LU. The application sought review of an enduring guardianship by which KU, LU’s wife, was his enduring guardian. The application was made on the basis set out in Section 34(1)(b)(i) and (ii) of the Guardianship and Administration Act.
The circumstances cited in the application related to conflict between the enduring guardian and other members of the family and alleging details of numerous matters relevant to 34(1)(b)(ii) set out in a chronology and a transcript of related handwritten records attached to the application form January 2012 including;
(a)Adequacy of the enduring guardian’s response to emerging symptoms of dementia,
(b)Correspondence and conversations by phone between the enduring guardian and the applicant regarding contact with KN and travel to and from UK,
(c)incidents of the enduring guardian disparaging the applicant to LU,
(d)LU refusing to allow the applicant to visit and threatening him with violence and to exclude him from his testamentary estate,
(e)Meeting with KC and EC,
(f)the enduring guardian claiming she had taken a restraining order against the applicant,
(g)Conflict between the enduring guardian and LU
The applicant sought an order appointing himself as guardian.
The Board convened a hearing of the application on 19 April 2013 at which the following persons attended: LU (the appointor), BU (the applicant), LU2 (the applicant’s sister), KU (current enduring guardian and wife of LU), KC (accountant and attorney under a registered power of attorney for LU), ECs (solicitor for LU), Pat Clark (Office of the Public Guardian).
The hearing centred around the application of Section 34(1). The validity of the appointment of KU as guardian was not in issue.
The guardian gave evidence that she was not willing to continue to act as guardian because of conflict within the family. It was apparent from the evidence given by the applicant that the conflict had been longstanding between him and the guardian which he said involved events beginning in 2012 and continuing until recent weeks. The events cited in his application commenced in March 2012.
As the requirements of Section 34(1)(b)(i) were satisfied it was necessary for the Board to determine whether it should revoke or amend the instrument of appointment.
EC gave evidence that he had personally observed conflict with the guardian and the applicant. He expressed the view that continuing conflict would be insurmountable if the applicant were appointed guardian.
LU’s solicitor KC gave evidence that he had acted as lawyer for LU for over 20 years. He expressed the view that, if the applicant were appointed as guardian, continued conflict among family members would render the guardianship unworkable. KC was of the opinion also that it would be desirable if LU’s guardian were a person independent of the family.
LU2 also supported the appointment of someone outside the family conflict that had occurred.
LU expressed the wish that his wife KU remain as guardian. He expressed the wish that the applicant not be appointed as guardian although he acknowledged the help and support he had received from the applicant.
It was apparent from the applicant’s demeanour and his approach to issues during the hearing that he sought adjudication of the events and conflicts outlined in his application, with a view to establishing that conditions under S34 (1)(b)(ii) applied, that is, that the guardian, in that capacity, had not acted in the best interests of the appointor, or had acted in an incompetent or negligent manner contrary to the provisions of the Guardianship and Administration Act.
The Board determined that it was not necessary for it to make a determination about past conduct of KU as guardian for the purpose of S34(1)(b)(ii) because it was satisfied that S34(1)(b)(i) applied as she was not willing to continue in the capacity of guardian.
The only relevance of exploring the detail of the events relied on by the applicant to evaluate the conduct of the participants would be to consider the prospect of ongoing conflict should the applicant be appointed as guardian as opposed to an independent guardian.
In the Health Care Professional Report submitted by Dr Rita Kornstorfer reference was made to conflict between BU and KU having “a negative impact on LU and that he is torn between different parties who try to convince him to take their side…. A guardian that is part of this family conflict perpetuates the situation that he is torn between different parties who try to convince him to take their side. It will be difficult for someone who is part of the conflict to make decisions free of this and only focusing on his best interests.”
When asked to explain how conflict would be dealt with if he were appointed guardian the applicant sought to have the Board adjudicate his account of events which he relied on to demonstrate that the enduring guardian was not suitable to continue in that office.
It was pointed out to him by a participant that doing so might damage his relationship with his father. However he persisted with his efforts to bring the focus to an examination of the conduct of the enduring guardian.
While the applicant stated that, if appointed guardian, he would inform the enduring guardian of his actions as guardian, his inability to engage with the enduring guardian during the hearing indicated that he would not be able to work in a consultative manner with her, as the LU’s wife, in his best interests.
Furthermore, the applicant was not able to state how, if he were appointed as guardian, he would be able to manage the conflict that, in the opinions of EC, KC and his sister would continue, if the appointed guardian were not independent of the family.
The Board concluded that the applicant continues to harbor sufficient negative feelings toward the enduring guardian for the prospect of continuing conflict between them to be real and significant and to impact on LU’s best interests including enabling him, as fully as is possible for him, to enjoy his relationship with his wife and his children without becoming involved in their conflict.
In those circumstances the Board determined that it would not be appropriate to appoint the applicant.
No alternative guardian was proposed other than the Public Guardian.
The Board considered whether it was appropriate to revoke the appointment or to amend the instrument of appointment. The grounds for the application and the Board’s reasons did not raise the need to address all of the issues which arise in connection with the appointment of a guardian under Section 20 of the Act. In particular, there was no issue in this case regarding the content of the guardian’s powers. The only dispute before the Tribunal was with regard to who should hold the office of guardian.
The most recent expression of LU’s wishes with regard to the powers to be available to his guardian is contained in the instrument of appointment. The instrument of appointment contained a number of directions regarding medical treatment.
In the circumstances the Board determined that it was neither necessary nor appropriate to revoke the instrument. Instead the Board, mindful of the principles of S6 of the Act, decided that the preferable course, sufficient to meet the issues raised for determination, was to amend the instrument of appointment pursuant to Section 34(1).
The instrument appointing KU as the enduring guardian for LU is amended by substituting The Public Guardian as the enduring guardian.
Colin McKenzie
DEPUTY PRESIDENT
Abigail Bindoff
Mary Davies
MEMBERS
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