NKG (Review Enduring Powers)
[2008] TASGAB 10
•25 June 2008
GUARDIANSHIP AND ADMINISTRATION BOARD
Burnie
N K G on the application of M G
Neutral Citation: NKG (Review Enduring Powers) [2008] TASGAB 10
REASONS FOR DECISION
Anita Smith (President)
Leon Peck (Member)
Terry McGuire (Member)
Review of Enduring Guardianship – capacity to execute the instrument – abilities of joint enduring guardians and alternative guardians – actions of guardians promoting family disharmony – failure to understand role – revocation vs amendment of instrument - substitution of guardians
Guardianship and Administration Act 1995 s. 25, 32, 32A, 33, 34, 35
Mrs N K G is 90 years old and lives at a Hostel, an aged care facility in the North West. She is widowed, has one son, M G, and three daughters, K D, M T and W E.
Mr M G is Mrs G’s son and has been appointed as her attorney pursuant to an enduring power of attorney registered number PAxxxx. On 8 April 2008, the Board received an application from Mr G to revoke an enduring guardianship dated 18 March 2008.
Mr G sought for the guardianship to be revoked on the basis of Mrs G’s lack of capacity to execute the deed and pursuant to section 34 of the Guardianship and Administration Act 1995.
Basis of the Application:
Section 34 of the Act provides:
“34. Revocation or amendment of appointment by Board
(1) The Board may, on an application under this section and after a hearing, revoke or amend the instrument of appointment of an enduring guardian if–(a) the enduring guardian seeks revocation of the appointment; or
(b) the Board is satisfied that the enduring guardian–
(i) is not willing or able to act in that capacity; or
(ii) has, in that capacity, not acted in the best interests of the appointor or has acted in an incompetent or negligent manner or contrary to the provisions of this Act.
(2) The application –
(a) is to be in writing; and
(b) is to be lodged with the registrar; and
(c) is to contain the prescribed information.
(3) The application may be made by –
(a) the Public Guardian; or
(b) the enduring guardian; or
(c) the appointor of the enduring guardian; or
(d) the administrator of the appointor's estate; or
(e) any other person who the Board is satisfied has a proper interest in the matter.”
Regulation 5 of the Guardianship and Administration Regulations states:
“For the purposes of section 34(2)(c) of the Act, an application to revoke or amend the instrument of appointment of an enduring guardian is to contain the following information:
(a) the name and address of each of the following:
(i) the applicant;
(ii) the enduring guardian;
(iii) the appointer of the enduring guardian;
(b) the telephone number, facsimile number or email address of each person referred to in paragraph (a);
(c) the reasons for seeking the revocation or amendment.”
Mr G’s written application was received by the Registrar on 8 April 2008. It contained all of the prescribed information. As her son, attorney and former enduring guardian, Mr G is a person with a proper interest for the purpose of making an application under Part 5 of the Act.
After investigation by the Board’s Manager of Investigation and Liaison, the hearing was convened on 19 June 2008 in Burnie. Mrs S and Mrs E attended in person. Mr G, Mrs T and Mrs D attended in various telephone conversations. A representative from the Office of the Public Guardian also attended. A list of the documents presented to the Board following investigation is presented in Attachment “A.”
The Instruments of Appointment:
According to the Board’s register, Mrs G first appointed an enduring guardian on 17 May 2007, registration number 4xxx. That instrument named M G as enduring guardian and M T as alternative guardian, who each indicated their acceptance of appointment. There were no specific conditions of appointment.
Registered instrument 4xxx was revoked on 18 March 2008 before two independent witnesses.
Mrs G then purportedly appointed P S and K D as her enduring guardians with W E as an alternative guardian pursuant to registered instrument 6xxx. That instrument is also witnessed by the same two independent witnesses.
That instrument notes the following conditions upon the guardians:
“I am mentally alert at this time, but due to my fragility, I would like my enduring guardians whom are nominated on this form to make joint decisions regarding my health and well being and any other decisions they feel will assist my Quality of Life.
I also request that no further changes to my circumstances are to be conducted while I am alive unless all four (4) children and I agree to such changes.”
According to her evidence, those conditions were written by Mrs S on Mrs G’s instructions.
The Board inferred the following from the conditions: That Mrs G considered at the time of execution that the guardians need to act jointly in all decisions (first condition) and that the guardians are to act as a conduit for a joint decision between Mrs G and her four children (second condition). To an extent, the second condition does not actually confer any decision making power at all, because by continuing to include herself in all decisions she has effectively given herself or any one of the children a power of veto against any changes to her circumstances. If such a power can be effective at all, the Board assumes it will require the guardian to be a conciliator or negotiator to ensure that all 5 persons are in agreement with a decision. That is what the Board has inferred were Mrs G’s wishes when executing the document.
The Board rejected assertions by Mrs S and Mrs E that the second condition imposed a requirement that the guardians may never be changed. The Board the words ‘changes to my circumstances’ primarily refer to the present circumstances of Mrs G’s accommodation at the aged care facility and current health care regime.
Capacity to execute the instrument:
Dr Jane Tolman prepared a report for the Board on 29 April 2008 with regard to Mrs G’s capacity to make decisions. This report was prepared on the basis of two visits on 10 March and 24 April 2008. Dr Tolman notes perseverative behaviours for which Mrs G is treated with Risperidone. She concluded her report by saying:
“It is very difficult to say definitively, but my impressions are that Mrs G would be very likely to be swayed by the person talking to her at the time. She probably has flashes of insight and understanding. She probably lacks capacity to make decisions about her well-being.”
Therefore Dr Tolman’s report was prepared on the basis of observations immediately before and after the execution of the instrument on 18 March 2008. It is not, however, a conclusive opinion and Mrs S and Mrs E did not accept Dr Tolman’s findings because they believed that Mrs G was negatively affected by drugs, particularly Epilim, at the time, and when not so sedated she is “as sharp as tack”.
All three guardians nominated on the later instrument referred to two other medical reports which agreed with their assertions. However despite all parties submitting written material to the Board prior to the hearing, these reports were not given as evidence to the Board. Accordingly the Board did not accept hearsay assertions attributed to alternative and unnamed medical practitioners.
Mr G, Mrs T and Mrs D agreed with the statement that Mrs G tends to agree with whomever is with her at the time and thought her easily influenced. The Board notes that this is not necessarily a product of an incapacity resulting from a disability but may be an underlying personality trait.
Mr G and Mrs T gave evidence that shortly after executing the document in separate conversations with each, Mrs G was distraught at the effect of the document and claimed that she had no idea of what she had done until later. Such statements were strongly disputed by Mrs S and Mrs E.
The Board notes that, unlike the provisions relating to reviews of an enduring power of attorney, the Act does not specify any conditions for the capacity of the donor to execute an enduring guardianship. As a matter of ordinary law, one would assume that execution of an instrument will require that the donor understands the nature and effect of that instrument, otherwise it cannot have legal effect.
The Board did not have sufficient evidence to conclude affirmatively that Mrs G had or did not have capacity at the time of execution of the document. Noting the silence of the Act, the Board assumes that there will be a presumption of capacity unless the contrary can be proved. As the contrary has not been proven to the satisfaction of the Board, the Board will not declare the instrument invalid.
Conduct of the enduring guardians:
Both enduring guardians and the alternative guardians were willing to retain nomination as guardians. However, Mrs S and Mrs E denied that Mrs G has lost capacity to make decisions. Mrs D was, however, of the opinion that Mrs G has lost capacity to make decisions. All three women agreed that no decisions have been made pursuant to the document. However, they have relied upon the presence of the document to endorse an informal and voluntary care arrangement between Mrs S and Mrs G.
Mrs S and Mrs E were adamant that Mrs S needs to be the guardian so that she can undertake a regular visiting a feeding routine that she has with Mrs G. When the Board pointed out that it was illogical to assert on one hand that Mrs G retains capacity, but on the other rely upon the instrument as authority for certain actions, neither Mrs E nor Mrs S understood.
Neither did Mrs S appear to understand when the Board asked her how the document can be operative when the guardians do not agree about Mrs G’s level of capacity. She maintained a lack of understanding in light of a discussion about the conditions which required joint decision making between guardians.
What Mrs S did appear to understand about the document was that it gave her a certain level of authority over Mrs G. That level of authority, which would appear to have been flaunted at Mrs T and Mr G, has upset the formerly nominated guardians and created a very high level of conflict amongst Mrs G’s family.
The Board assessed the evidence of the conduct of the guardians as relevant to their ability to undertake the role for the purposes of section 34(1)(b)(i) of the Act. This is because section 34(1)(b)(ii) would assume that the enduring guardianship is operative and the Board, having reached the above conclusion about capacity, could not be certain that the document is operative.
Mrs P S – Ability to Act as a Joint Enduring Guardian:
The applicant indicated in his application that Mrs S was unknown to the G family until 9 months ago. Initially her regime of visiting and feeding Mrs G proposed as a commercial arrangement for which payment was sought. Once this was refused, however, the regime continued. To some extent this was confirmed by the evidence of Mrs E and Mrs S at the hearing. Mrs S commenced her care regime at Mrs E’s request, when Mrs E was concerned that her mother was receiving inadequate care as evidenced by some podiatry problems and dentistry problems.
The Board received evidence that Mrs G is a needy person who needs company and that Mrs S has supplied that company where it was otherwise lacking. This evidence did not trouble the Board. What did trouble the Board was the insistence by Mrs S and Mrs E upon proving that Mr G and Mrs T were negligent in their care.
Despite numerous explanations by the Board members that the performance of Mr G and Mrs T as enduring guardians was not a relevant question before the Board, Mrs S attempted on numerous occasions to read out a catalogue of neglect which she asserted regarding Mr G, particularly. She was extremely aggressive with regard to the fact that Mr G had not visited Mrs G since April 2008. It was evident that Mrs S has kept a catalogue of all interactions with Mrs G with a view to proving that her level of care is better than the previous guardians. Mrs T viewed Mrs S’ practice of diary keeping events regarding Mrs G as ‘spying’.
Clearly, Mr G and Mrs T were uncomfortable with the appointment of Mrs S because it has elevated her essentially into a familial role when she is, from a biographical perspective, a stranger to the family unit. That said, the family is dysfunctional as a potential decision making body. It appears highly unlikely that any person, and especially a family member, will be able to reach accord between all persons on major decisions regarding Mrs G. There may have been a good reason for Mrs G to appoint a non-family member to the role of enduring guardian to play a non-factional and conciliatory role. Unfortunately, Mrs S’ understanding of her role, and her behaviour to date, shows that she has exacerbated the family’s dysfunction and is entirely factionalised in her approach.
All of the above satisfied the Board of four things. Firstly that Mrs S was completely unable to appreciate the difference between being a carer or visitor as against being a guardian. Secondly, that Mrs S did not understand that she cannot exercise authority as a guardian until such time as she is satisfied that Mrs G has lost capacity to make decisions about her person and circumstances. Thirdly that Mrs S and Mrs D were required by the instrument to act jointly and yet they disagree on the fundamental question of whether or not Mrs G has lost capacity. Fourthly, that Mrs S’ aggressive and accusatory response to Mrs T and Mr G meant that if and when Mrs G loses capacity, Mrs S will be completely incapable of performing the conditions required of the enduring guardian in a conciliatory manner.
Mrs K D– Ability to Act as a Joint Enduring Guardian:
As noted above Mrs D held a different view to Mrs S about Mrs G’s level of capacity. The Board took the view that, both by operation of the conditions in the instrument and by operation of law, the joint guardians must agree on all decisions and the fact that the named joint guardians did not agree on the significant question of Mrs G’s capacity to make decisions about her person and circumstances, meant that their capacity to act as joint guardians is fundamentally flawed.
Mrs W E – Ability to Act as an Alternative Enduring Guardian:
Mrs E is the person who introduced Mrs S to Mrs G. Mrs E was described by other members of her family as a ‘troublemaker’. Mrs E impressed the Board as a highly manipulative person who engaged in a number of emotional displays before the Board, but her demeanour was judged by the Board to be less than genuine. She suffered the same misunderstandings as Mrs S about the role of an enduring guardian. While, on one hand, the introduction of Mrs S to Mrs G has had a positive effect on increasing the company available to Mrs G, on the other hand the introduction has provoked significant family conflict and alienated Mrs T and Mr G from their mother in material ways. Mrs E is, in the view of the Board, unable to act as an enduring guardian for the same reasons as Mrs S.
Conclusion Regarding Appointed Joint and Alternative Guardians:
Fundamentally, none of the persons appointed by Mrs G has shown the ability to act according to her wishes in demonstrating the ability to act cooperatively with all family members with regard to decisions about her future person and circumstances. The Board is satisfied that the ability of an enduring guardian to act in that capacity includes the ability to meet the conditions imposed. None of the three nominated persons showed the ability to meet the conditions imposed for cooperative decision making.
Role of an Enduring Guardian:
The Board is satisfied that an independent and professional guardian will be the only person capable of approaching the task of an enduring guardian according to the conditions set by the donor.
The Public Guardian is an independent and professional guardian. The Board considers that the role of the enduring guardian appointed pursuant to an amendment under section 34 is different to a guardian appointed by the Board pursuant to section 20. This difference means that an enduring guardian will need to satisfy him or herself that the appointor has or does not have capacity. The Board recommends that the Public Guardian seek an opinion and monitor Mrs G’s capacity to make decisions.
The Board also noted that a significant concern to Mrs T was the arrangements regarding any ‘end of life’ decisions for Mrs G. If Mrs G lacks capacity for such decisions, then the Board recommends that the enduring guardian develops (in a collaborative manner with Mrs G and all 4 children) a care plan specific to ‘end of life’ decisions and communicates that plan to the relevant nursing home and medical staff.
An enduring guardian may also, if the appointor has lost capacity, make decisions about who visits Mrs G and when they visit. The enduring guardian may have to make an assessment about the visiting arrangements by Mrs S.
None of the above limits the role of the guardian to make other decisions arising from responsibilities conveyed by section 25 of the Act and the instrument itself.
Revocation vs Amendment of the Instrument:
The Board was aware that all parties to this application were asserting levels of control over Mrs G’s decision making. Parties accused each other of power struggles, and using appointment as guardians to achieve that power. This is a disappointing approach to an instrument that is designed to promote the best interests of the appointor once he or she has lost capacity. The Board considered revoking the enduring guardianship outright, however it was conscious that it is in Mrs G’s best interests that these power struggles cease. The Board also noted that the conditions appeared to reflect Mrs G’s wish for cooperative decision making within her family. For that reason, the Board substituted the Public Guardian into the enduring guardianship role, rather than revoke the document because to create a vacuum of power may encourage these struggles to continue contrary to Mrs G’s wishes and her best interests.
Conclusion:
After hearing as application by M G of (address) (hereinafter ‘the applicant’) in relation to an Instrument Appointing an Enduring Guardian registered number 6xxx and dated 18 March 2008 (hereinafter ‘the instrument’) made by N K G of (address) (hereinafter ‘the appointor’) appointing P S and K D as joint enduring guardians and W E as alternative enduring guardian (hereinafter ‘the enduring guardians’)
The Board was satisfied:
Pursuant to section 34(3)(e), that the applicant has a proper interest in the matter,
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 P S, K D and W E as the enduring guardians for N K G by substituting the Public Guardian as the enduring guardian.
Anita Smith Leon Peck Terry McGuire
PRESIDENT MEMBER MEMBER
Date of Order: 25 June 2008
Statement of Reasons delivered: 30 June 2008
ATTACHMENT “A”
Documents available to the Board:
Application documents:
Application dated 7.4.08
Report Dr Jane Tolman dated 29 April 2008
Registered Instruments:
Enduring Guardianship #4xxx
Revocation of Enduring Guardianship #4xxx
Enduring Guardianship #6xxx
Enduring Power of Attorney PAxxxxx
Internal GAB documents:
File note D. Webster, Registrar, 20.5.08
Report: Anne Perks, Manager Investigations and Liaison, dated 27.5.08
Pre-hearing checklist completed by Registrar 5.6.08
Pre-hearing correspondence:
Fax from O. S to GAB 15.5.08
Email J. D to A. Perks dated 17 May 2008
Email N. G to A. Perks dated 26 May 2008
Letter from V. E to A. Perks (undated)
Email from L. T dated 27 May 2008
Diary notes L. T 24.2.08 - 27.5.08
Email exchange between L. T and A. Perks 22.5.08 - 30.5.08
ATTACHMENT “B”
| PART 5 - Appointment of enduring guardian 32. Appointment of enduring guardian (a) it is in accordance with Form 1 in Schedule 3 or in a form to similar effect; and (3) A person is not eligible to be appointed as an enduring guardian unless he or she is of or over the age of 18 years. (a) it is in accordance with Form 2 in Schedule 3; and 34. Revocation or amendment of appointment by Board (a) the enduring guardian seeks revocation of the appointment; or (i) is not willing or able to act in that capacity; or (2) The application – (a) is to be in writing; and (3) The application may be made by – (a) the Public Guardian; or 35. Advice or directions as to instruments of appointment |
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