NKG (No2) (Review Enduring Powers)
[2010] TASGAB 11
•2 June 2010
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
NKG – Application for advice and direction by the Office of the Public Guardian
Neutral citation: NKG (No2) (Review Enduring Powers) [2010] TASGAB 11
ADVICE AND DIRECTION
Anita Smith
President
Review of enduring powers – request for advice and direction regarding the powers of the Public Guardian – whether powers extend to acting as a guardian under an enduring guardianship as amended in a hearing by the Board.
Guardianship and Administration Act 1995 s 3, 15, 20, 31, 32, 34
On 19 June 2008 the Guardianship and Administration Board reviewed an enduring guardianship instrument executed by NKG (“NKG”). The Board ordered:
“After hearing as application by OG of Tasmania (hereinafter ‘the applicant’) in relation to an Instrument Appointing an Enduring Guardian registered number XXXX and dated 18 March 2008 (hereinafter ‘the instrument’) made by NKG of Tasmania (hereinafter ‘the appointor’) appointing PNS and KFD as joint enduring guardians and WMD as alternative enduring guardian (hereinafter ‘the enduring guardians’)
The Board was satisfied:
(i)Pursuant to section 34(3)(e), that the applicant has a proper interest in the matter,
(ii)Pursuant to section 34(1)(b)(i), that the enduring guardians are not able, jointly or severally, to act in that capacity
THE BOARD AMENDS the instrument appointing PNS, KFD and WMD as the enduring guardians for NKG by substituting the Public Guardian as the enduring guardian.”
Such appointment was made pursuant to section 34 of the Guardianship and Administration Act 1995 (‘the Act’). Reasons for the Board’s decision are recorded in NKG (Review Enduring Powers) [2008] TASGAB 10
Request for advice and direction
On 4 May 2010 the Public Guardian received legal advice from the Solicitor General’s office stating that “…a person cannot appoint the Public Guardian as an enduring guardian under s32 of the Act; only the Board has the power to appoint the Public Guardian as a guardian and only in accordance with s20 of the Act” (emphasis added). As a consequence of receiving that advice, the guardian has on 21 May 2010 sought advice and direction from the Board presumably to resolve whether the Solicitor General’s opinion is correct with respect to this particular appointment which occurred under section 34 not section 20 of the Act.
Process
Because this is a question of legal interpretation, the Board elected to proceed with providing the requested advice and direction without a hearing as is permissible under section 31 of the Act. However to ensure that the interested parties are accorded procedural fairness (natural justice), a copy of the Solicitor General’s advice and a draft of this advice and direction was provided to them on 3 June 2010 with an opportunity to for them to seek alternative legal advice and to respond by 25 June 2010.
MT and OG, two of the represented person’s adult children, responded by telephone indicating to the Registrar that they had no objections to the proposed advice to the Public Guardian. There was no response from WMD or KFD, her two other daughters. The Public Guardian supplied to this office a copy of further advice it had received from the Solicitor General’s office dated 9 June 2010 which stated:
“In my view, it is open to the Board to appoint the Public Guardian as an enduring guardian by way of amending an existing instrument of appointment even though it is not open to the original appointor to appoint the Public Guardian. First, s15(1)(h) provides that the Public Guardian is to act as a guardian when so appointed by the Board. Secondly, s34 makes no restrictions in relation to whom the Board may appoint as an enduring guardian.”
This opinion, therefore, confirmed the content of the draft statement of reasons.
The Board’s view
In the Board’s view, the appointment of the Public Guardian on 19 June 2008 was a valid appointment.
The Solicitor General’s earlier advice related to the scope of the Public Guardian’s functions as set out in sections 15 and 17 of the Act and concluded that private persons cannot elect to appoint the Public Guardian as their enduring guardians pursuant to section 32 of the Act, indicating also that the only portal for appointment of the Public Guardian is through the authority of the Board. In particular, the advice related to section 15(1)(h) which states:
“(1) The Public Guardian has the following functions:
… (h) to act as a guardian or administrator when so appointed by the Board;”Section 3 of the Act defines a “guardian” as follows:
“"guardian" means a person named as a guardian in a guardianship order or as an enduring guardian in an instrument of appointment as such;”
In the Board’s view the appointment by the Board of the Public Guardian as a substitute guardian is within the ambit of section 15(1)(h) and therefore an appropriate function of the Public Guardian or her duly appointed delegate. Therefore the Public Guardian remains, until further review, the appropriate guardian and may act according to the terms of the instrument of appointment dated 18 March 2008 and the order dated 19 June 2008.
Anita Smith
PRESIDENT
25 June 2010
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