NMN (Review of Enduring Powers)
[2019] TASGAB 19
•12 July 2019
CITATION: | NMN (Review of Enduring Powers) [2019] TASGAB 19 |
HEARING DATE(S): | 12 July 2019 |
DATE OF ORDERS: | 12 July 2019 |
DATE OF STATEMENT OF REASONS: | 6 August 2019 |
BOARD: | Ms L Wall Mr C Lee Ms M A Ryan |
APPLICATION: | Application for Review of an Enduring Power of Attorney |
CATCHWORDS: | Review EPA– allegations of mismanagement of estate – appointment of independent administrator – best interests of Donor |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 51(1)-(4) Powers of Attorney Act 2000 (Tas), ss 32, 33(2)(f)-(g) |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
1.On 12 July 2019, the Guardianship and Administration Board (‘the Board’) heard an application by IM for the review of a general Enduring Power of Attorney (‘the EPA’) executed by her mother, NMN (‘the donor”) on 27 February 2013 appointing [the company] as Attorney. The Applicant sought the revocation of the EPA, because of concerns that the Attorney was not acting in the best interests of the donor, and the appointment of herself as administrator.
2.The donor is an 84 year old widowed lady who was at the date of hearing residing at [the facility] in [the location].
Hearing
3.In attendance at the hearing were:
a.IM (the Applicant);
b.Ms Rosemary Jurs (Public Trustee), (‘PT’);
c.KS (grandson); and
d.SU (daughter).
The Board had before it the EPA instrument executed on 27 February 2013. The Instrument appeared on the face of it to be unregistered and the Board had been so advised following a search of the Enduring Power of Attorney Register by the Board’s Registry.[1]
The Attorney, [the company] was notified of the hearing but there was no appearance on its behalf.
[1]Note that subsequent to the hearing this information proved to be incorrect. The instrument was in fact registered as PAXXXXX .
4.The Board had before it the following documents:
a.Application by IM dated 30 May 2019;
b.Medical Report by geriatrician, Dr David Dunbabin dated 10 August 2016, (‘Dr Dunbabin’);
c.ACAT Report from Myagedcare by Ms Merrilyn Orr dated 11 September 2015;
d.Summary of donor’s bank account transactions between 2016-2019 from IM;
e.Submissions and attachments dated 3 July 2019 from SW, Director of [the company];
f.The donor’s Mystate Bank statements 30 September 2016 to 31 May 2019;
g.Submission from QN (Donor’s brother); and
h.A Police Check Certificate for the Applicant from Tasmania Police.
5.The Board found that it was not in the donor’s best interests for the EPA to continue. It revoked the EPA pursuant to section 33(2) of the Powers of Attorney Act 2000 (‘PAA’).
6.The Board found further that the donor was, by reason of a disability, unable to make reasonable judgments in respect of her estate and was in need of an administrator. Pursuant to Sections 33(2)(f) and (g) of the PAA the Board appointed the PT as administrator for a period of three years and made directions that the PT investigate whether there had been any financial mismanagement by the Attorney or any other person, and further to take steps, if appropriate to recover any sums improperly withdrawn, paid or loaned out the donor’s estate. The full terms of the orders made and the directions given are set out at the conclusion of this Statement of Reasons.
Evidence about the EPA
7.As the Attorney did not attend the hearing, the only evidence before the Board from the Attorney concerning the company’s management of the donor’s finances was contained in correspondence from SW, together with attachments dating back to activities performed back in 2016/2017. He advised that his role was limited to the sale of the donor’s unit and her transition to [the facility] in 2016 on her written instructions; that the day to day management of her affairs was, and continued to be managed by SU; and that the company had no authority to act in respect of the donor’s Mystate Account, her pension or superannuation. SW advised that the Attorney had not taken any action in relation to the donor’s finances since 2016/17. IM and SU, however, both believed that the Attorney was indeed responsible for their mother’s accounts and IM was under the impression, incorrectly, that the Attorney was responsible for Centrelink.
8.The Board found that it was not in the donor’s best interests for the power to continue because:
a.It was the Board’s understanding that the Attorney had never registered the EPA although it had dealt, at least until 2017, with the donor’s estate in some capacity;
b.SW’s advice was that the company was not responsible for managing the donor’s finances and had only ever had a limited role. It was unclear whether the Attorney believed it had ever acted under the EPA or simply upon specific instruction from the donor;
c.There was obvious confusion on the part of the two daughters about whether the Attorney had acted pursuant to the EPA, or, if not, who in fact was responsible for the donor’s finances;
d.In the Application the Applicant raised irregularities in the operation on the donor’s bank accounts since 2016, yet SW in his correspondence opined
I believe it would not be appropriate to change the current position regarding the management of her affairs as she is comfortable with her daughter attending to her needs.
e.The attachments provided to the Board by SW show that on 1 February 2017 the donor signed an acknowledgement of debt for $25000 to her brother QN for the purpose of eliminating the daily fee caused by a shortfall in payment to [the facility] after the sale of her house. On 5 March 2018, apparently without repayment of that debt, the donor signed a document expressing a wish to loan $1000 to her daughter SU at no interest, which sum was then withdrawn by SU from the donor’s account. The Attorney did not address the question of the donor’s capacity to make these decisions or whether the loan to SU was in her best interests when she still owed a significant debt to her brother; and
f.Despite notice of hearing, the Attorney did not attend to explain its role and performance as Attorney or otherwise, or to clarify the apparent irregularities in the donor’s accounts, raised in the application.
Legislation
9.Pursuant to Section 33(2) of the PAA the Board may, after a hearing–
(f) revoke the enduring power of attorney and, if the donor is over the age of 18 years and the Board thinks fit, appoint an administrator of his or her estate; or
(g) make such other order as to the exercise of the power, or the construction of its terms, as the Board thinks fit.
10.As the Board could not be satisfied that the Attorney was acting (or had ever acted) as Attorney under the EPA in accordance with the duties set out in Section 32 of the PAA or at all, the Board therefore revoked the EPA.
11.Section 51(1) of the Guardianship and Administration Act 1995 provides for the appointment of an administrator where a person:
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
(c) is in need of an administrator of his or her estate–
(2) In determining whether or not a person is in need of an administrator of his or her estate, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of the person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) Where the Board makes an order appointing an administrator of a person's estate, the order is to be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.
Is the donor a person with a disability
12.There was no current Health Care Professional Report (‘HCPR’) provided with the application. However, a letter addressed to the donor’s GP from geriatrician Dr Dunbabin dated 10 August 2016 provided a diagnosis of Alzheimer’s dementia. A MOCA assessment dated 3 August 2016 recorded a result of 18/30, a decline since May 2015 when a MOCA assessment referred to in the ACAT report of 11 September 2015 was recorded as 22/30. Her condition was demonstrably declining. The Board was satisfied the donor has a disability.
Is the donor, by reason of her disability unable to make reasonable decisions about her estate
13.Dr Dunbabin’s report advised that the donor did not have capacity to manage her finances at the time he assessed her. She had little understanding of her assets and their value. She believed, incorrectly, that her brother QN was her Attorney. Dr Dunbabin‘s opinion was that she would not be able to manage her day to day finances and would need assistance with selling her house. She demonstrated deficits in interrupted recall, interpretation and executive issues and planning.
14.The ACAT report described regular short term memory problems, occasional hallucinations, delusions, wandering behaviour and confusion. She was regularly disorientated as to time and place and occasionally disorientated as to person.
15.The family members present at the hearing agreed with those assessments and the Board accepted that evidence of disability and incapacity for financial decision making.
What are the donor’s wishes
16.The donor did not attend the hearing. SU had not brought her due to concerns of her own ill health impacting her mother. The donor was not able to participate by phone due to severe hearing loss. Her views could not therefore be directly ascertained, but Dr Dunbabin reported her understanding that her brother advised on her finances and that she believed he was her attorney. Whilst SW confirmed the brother’s involvement, he also reported that the donor would want her daughter SU to manage her finances. Whilst the donor obviously did not consider managing her own finances, her wishes as to who she wanted for this role were not clear.
Is the donor in need of an administrator
17.There was significant written evidence before the Board about the donor’s finances but nothing to clarify satisfactorily who had been making decisions for her since 2016 or who had authority to do so. SW’s submission stated that the company had not made financial decisions since 2016 and it was unclear whether any decisions were made even prior to that. It was therefore also unclear what the Attorney’s account for $4897.89 was for. If it was indeed for simply selling the property and transitioning to RACF the quantum requires explanation. Shields Heritage acted on behalf of the donor in the sale of the unit at a cost of $979.27. The real estate agent charged $10,000.00 for the sale. The value of the unit was only $295,000. IM and SU did not know what the fee had been for or how it had been paid.
18.What was clear from the Attorney’s tax invoice was that significant charges had been made for meetings (up to 2 hours in length) with, and correspondence to the donor and family members. The ongoing dispute between the two sisters was referred to in the submission. Both sisters agreed that there were meetings with the attorney to try to resolve disputes over the donor’s finances. The dispute has never been resolved and it is this that has precipitated this Application, the Applicant maintaining that the Attorney failed to communicate with her after she requested a reconciliation of the donor’s accounts in September 2017.
19.The daughter’s both agreed that there was longstanding conflict and a lack of trust between them with mutual allegations of questionable financial dealings. The Applicant’s concerns were that her sister had used money for her own benefit and the Applicant had received no understanding of how the Attorney was paid, what he was paid for or even who signed the contract for the sale of the donor’s unit. The evidence from the Applicant was that although she had previously had access to all three of her mother’s accounts and held a bank card for the donor, she had never used it and had never managed her mother’s money. SU agreed that she had paid bills, managed day to day finances and was the Centrelink Nominee, but said that the Attorney ‘was looking at statements and keeping an eye on anything I did wrong’ and ‘knew I would do the right thing by my mother’. This does not accord with the Attorney’s evidence that he had not acted for the donor after 2017. SU also stated that although she started looking after the accounts in 2016, she ‘stopped keeping records on 27 February 2016’. She gave no explanation for this.
20.All the evidence pointed to the fact that nobody knew who was legally accountable for managing the donor’s finances, and it appeared likely that nobody was accountable. It was therefore clear to the Board that the appointment of an administrator was necessary and all the family present supported this.
21.In light of the dispute between the Applicant (proposed administrator) and her sister who had been dealing with the finances, it was conceded by both of them that it would be desirable that an independent administrator be appointed. This was particularly so since the question of anomalies in the bank account transactions, including loans to family members and actions taken by the Attorney, warranted investigation.
Decision
22.The Board is satisfied that the donor is a person with a disability; that as a result of the disability she is unable to make reasonable decisions about her estate and is in need of an administrator.
23.The Board Orders:
1. That the Enduring Power of Attorney (PAXXXXX ) is revoked.
2. That the Public Trustee (Tas) is appointed Administrator of the estate of the Donor.
3. That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
4. That the Administration Order remains in effect to the 11th day of July 2022.
Further the Board Directs:
1. That the Public Trustee is to investigate whether there has been any financial mismanagement of the Donor’s estate by [the company] or any other person.
2. That the Public Trustee is to take steps deemed appropriate to recover any sums improperly withdrawn, paid or loaned out of the Donor’s estate.
********
0
0
2