NNE (Review of Enduring Powers) - [2016] TASGAB 13

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

NNE (Review of Enduring Powers) [2016] TASGAB 13

REASONS FOR DECISION

Ken Stanton (Member)

Preliminary Hearings - Friday 17 June 2016
Friday 30 September 2016

Review enduring power of attorney – family conflict

Review enduring guardianship

Guardianship and Administration Act 1995 s.72

Powers of Attorney Act 2000 - s.33, 35

On 20 May 2015 NNE (“the Donor”) executed an enduring Power of Attorney appointing her daughters HNE and DNE as her attorneys. That instrument was registered with the Recorder of Titles on 22 May 2015 as PAXXXX (“the EPA”).
The EPA revoked a previous general enduring power of attorney registered by the Recorder of Titles as PAXXXX and executed by the donor on 6 May 2011 which appointed the donor’s daughter DNE and the donor’s son HQE as attorneys. On 6 May 2011, the donor also executed an Instrument Appointing Enduring Guardian which appointed her daughter HNE as her enduring guardian. That instrument was registered with the Board as No XXXX (“the Enduring Guardianship”).
Without any disrespect it is convenient to refer to the attorneys and the enduring guardian by their first names.

Applications for Review of the EPA and the Enduring Guardianship

On 3 September 2015 the donor’s daughter TN applied for a review of the EPA pursuant to s33 of the Powers of Attorney Act 2000 (“the POA Act”). That application sought the revocation of the EPA and/or the appointment of the Public Trustee or Tasmanian Perpetual Trustees as a new attorney or administrator. On 11 September 2015 TN applied for a review of the Enduring Guardianship. That application sought the revocation or amendment of the Enduring Guardianship and the appointment of the Public Guardian as the donor’s guardian.
On 27 January 2016, the Board received an application for review of the EPA pursuant to s33 of the POA Act from the donor’s daughter BT. That application sought a determination about the operation of the EPA by the attorney, the revocation of the EPA and/or the appointment of Tasmanian Perpetual Trustees as a new attorney or administrator. On the same day, BT applied for a review of the Enduring Guardianship. That application sought the revocation or amendment of the Enduring Guardianship and the appointment of XXXX Nursing Home as the donor’s guardian.

Applications for Information

On 18 January 2016, the Board received a request from TN pursuant to s32D of the Guardianship and Administration Act 1995 (“the GAA Act”). The Board’s investigator Ms. Dalgleish pointed out some difficulties with that request. TN said she would rewrite the request and on 11 May 2016 the Board received a letter from TN which appears to be the rewritten request. At the preliminary hearing on 17 June 2016, TN confirmed that she relied on the letter of 11 May 2016 to specify her requests for information. That letter sought the following information:
·      “an itemised inventory of all mum’s property including furniture, jewellery, collectables and personal belongings, dads war medals and tools that were still in the house when she was move into XXXX.
·      as DNE has advised in writing some of mums belongings were put into storage, but refused to advise what the items were or where they are stored, a [sic] an itemised list of what those items are and where they have been stored
·      an itemised account of what happened to the rest of mums property from her home in the North West that was not put into storage and how it was disposed of
·      an itemised inventory of all mums belongings from Nursing Home that DNE advised were packed into a suitcase and dumped on the footpath outside the Lifeline shop in Argyle Street Hobart on Good Friday, the day after mum passed away
The shop was closed that day and I have contacted them and tried to recover a coat and hat that mum had told me I could have, that had special meaning to me, but a local business person noted people ratting through all the property that was dumped on that Friday and mums belongings were stolen and what was not taken was left strewn around the footpath. I believe that incident gives an insight into DNE's concerns for my mother and respect for her property
·      mum had a substantial amount in her bank account when she moved into XXXX, over $100,000, and I am requesting that all transactions from and into her bank accounts be accounted for from the date she moved into XXXX in 2013 until she passed away on 24 Match 2016
·      an explanation as to why mum was made to transfer her affairs from her long term family lawyer, QN, to a lawyer who she had never previously had any dealings with
·

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an explanation as to why they refused to give mum a key to her own house when her lawyer, QN, wrote to them in 2013 requesting she be given a key”
Although the request of 11 May 2016 did not specify the provision upon which it relied, the matters raised are related to the donor’s property. The Board therefore considered that to be a request for the Board to seek a record of dealings and transactions from the attorneys pursuant to s32AD of the POA Act.
On 27 January 2016, the Board received a request from BT pursuant to s32AD of the POA Act seeking to have HNE, DNE and HQE provide copies of records to the Board in relation to various dealings and transactions being:
·      A documented account of all decisions and dates of those decisions made on our mothers behalf since 6 May 2011.
·      Copies of all documents that our mother has signed in relation to decisions on her finances and property since 6 May 2011.
·      An itemised inventory of all property removed from XXXX, by HQE, DNE and HQE. The inventory is to include the address/es of where all property 'held in safe keeping' is located and the method of storage of items 'held in safe keeping'.
·      The inventory is to identify all items sold, where they were sold, the amount achieved from the sales, and details on where any funds were banked or otherwise.
·      A full explanation of the reasons of what lead [sic] to HQE being removed as Power of Attorney, including who was involved in making the decision, and on what dates the decision was made.
·      A full explanation of the reasons why an independent person was not appointed as mum's second Power of Attorney.
·      A full explanation of how the decision was made to appoint HNE as mum's second Power of Attorney.
·      An audited financial statement of all our mother's accounts since 6 May 2011
On 27 January 2016, the Board also received a request from BT pursuant to s32D of the GAA Act for HNE to provide copies of her records to the Board in relation to various dealings and transactions as follows:
“Explain why she ignored all BT's concerns about the emotional abuse and the financial dependence NNE was subjected to by HQE, particularly as she (HQE) had raised her concerns about HQE's mental state in 2009/10.
Explain what steps she took from 2011 to 13 April 2013 to support/protect NNE, when she knew full well that HQE exerted control over NNE, (isolated mother from daughters by physically and verbally attacking his sisters in NNE's home; insisted mother had to inform him of BT's visits to her home; stalked TN when she visited mother; financial dependence on NNE).
Provide details of her dealings and transactions with:
NNE's doctor, Dr Bulle (specifically from April -July 2011). Particularly in regard to whether she alerted Dr Bulle to the debilitating effect on NNE from the behavior of HQE; and the need for BT to take out a Restraint Order to prevent HQE visiting his mother's house while BT was visiting.
NNE's doctor, Dr Bulle in regard to BT's concerns raised in two letters and a phone call to Dr Bulle in May 2011.
The lawyer who witnessed NNE's appointment of HQE as her Guardian, specifically in regard to whether the lawyer was informed about the family dysfunction, and the effect on NNE.
Facility Manager at XXXX to alert him to the adverse behavior of HQE towards his mother and sisters.
Powers of Attorney DNE and HQE in regard to the removal of NNE's house key from her possession after she entered XXXX.
Powers of Attorney DNE and HQE in regard to BT's letter dated 29 May 2014 requesting to be provided with a key for NNE's house
Powers of Attorney DNE and HQE in regard to the letter from NNE's lawyer QN dated 3 June 2014 that set out her instructions to be provided with a key to her house.
Power of Attorney DNE in regard to the letter BT wrote to NNE on 7 January 2014, that detailed NNE's concerns about her possessions, vandalism of her property by HQE, and HQE's actions in changing the locks on NNE's house without her permission after she independently initiated having the locks changed so that she had a key to her house, and which encouraged NNE to seek independent advice from Advocacy Tas, and from services on management of her finances.
DNE in regard to confiscation of BT's letter from NNE, and, the decision to take NNE to DNE's lawyer Leanne Topfer, Mclean & Mackenzie Law, on 14 January 2014.
The University of Tasmania Burnie Campus staff particularly in regard to her instigating removal of BT's contact details from NNE's university account; and in regard to interference with NNE's university studies when it was clear that BT had explained to her (in a phone call in April) and in a letter to DNE on 16 April that BT had everything organized including a tutor, and any interference by family members was contributing to NNE's confusion and distress.
Facility Manager at XXXX staff in regard to NNE's increased confusion from April 2014.
XXXX staff and NNE's doctor in regard to NNE's university studies.
Facility Manager, NNE, DNE & HQE in regard to the decision in September 2014 to cancel NNE's university studies; and explain why the people involved in supporting NNE with her studies, BT and EC, were not consulted at that time.
Facility Manager, Elizabeth Love GAB, DNE, HQE between 5 - 7 Nov 2014
NNE in regard to the letter signed by NNE in the presence of HQE, DNE and HQE at XXXX on Sunday 9 November 2014.
NNE and Power of Attorney DNE in regard to two significant events in NNE's life that BT, DT, FT, BT and TN were excluded from, being the launch of NNE's first novel at XXXX in Nov 2014 and Hobart, March 2015.
NNE's doctor prior to the changes in Power of Attorney in May 2015.
DNE in regard to the removal of HQE as Power of Attorney in May 2015, and the appointment of HQE as Power of Attorney, and the decision to take NNE to DNE's lawyer Leanne Topfer and not NNE's lawyer QN, McGrath & Co Law, Burnie, to change the Power of Attorney.
Leanne Topfer, Mclean & Mackenzie Law in regard to the removal of HQE as Power of Attorney, and appointment of HQE as Power of Attorney on 20 May 2015.
NNE's doctor in regard to the decision by the Guardian to disregard NNE's wishes and block all information on NNE's health and welfare to her daughters BT and TN.
Regard to all visits to lawyers with NNE from 2011 to 2015.
NNE's Powers of Attorney DNE and HQE in regard to the removal, dispersal, and sale of NNE's possessions from XXXX.
On 11 April 2016 Mr. Egan of Murdoch Clarke on behalf of BT requested the Board to exercise its powers pursuant to s32AD of the POA Act to request the attorneys to provide documents setting out an accurate record of dealings and transactions made by them whilst they were attorneys for the donor.
As a result of the preliminary hearing on 17 June 2016 referred to later in these reasons, the Board received submissions from Mr. Egan on behalf of BT. Those submissions indicated that the orders sought by BT were orders that:
·      all the attorneys provide to the Board an accurate account of the dealings and transactions made by the attorneys;
·      the guardian provide to the Board an accurate record of all dealings and transactions made by her as an enduring guardian;
·      that a copy of the accounts/records be provided to BT and other family members involved in the hearing.
At the preliminary hearing on 30 September 2016 BT specified that she sought information as to any dealings or transactions with a number of items which she agreed to specify. She later provided that specification. The items are set out in a schedule to these reasons. She also sought a copy of a valuation of the donor’s property obtained by DNE.

Proceedings before the Board

Section 72 of the GAA Act requires the Board to commence a hearing in respect of any application under the Act within 45 days of the day on which the application was received by the Board. The applications for review of the EPA are made under the POA Act and not the GAA Act so that time limit may not apply to those applications. Section 33 of the POA Act provides that the Board may hold a hearing of a review in accordance with Division 1 of Part 10 of the Act which includes s72. It is therefore at least arguable that time limit applies. The time limit clearly applies to the applications for review of the Enduring Guardianship. The Board did not commence a hearing of any of the reviews within that time frame. Nonetheless, the failure to hold a hearing within that time frame does not render any proceedings invalid or remove the jurisdiction of the Board to hold a hearing and determine the relevant applications.
On 24 March 2016, before the Board conducted a hearing of any sort, the donor died. By a codicil dated 23 October 2015 to her will of 24 December 2014 she had appointed HNE and DNE as executors in place of HNE and HQE.
On 17 June 2017, the Board conducted a preliminary hearing. The hearing was attended by:
BT
Mr. Damien Egan – the lawyer for BT
TN (by phone)
DNE
As a result of the hearing the Board issued directions for written submissions addressing the following matters:
·      The orders or actions of the Board that they respectively seek;
·      The powers of the Board to make the orders or take the action they respectively seek;
·      The effect of the death of the donor on the Boards discretion to take action or make the orders sought by each of the parties
· Whether the Board should under s33 of the POA hold a hearing to review the EPA No. PAXXXX and EPA No.PAXXXX, including submissions as to the effect the death of the donor has on the discretion;
· Whether the Board should exercise its powers under s33(1A) of the POA Act in respect of both the applications to review the two EPA’s and s11(13)(a) of the GAA Act 1995 in respect of the application to review the enduring guardianship to reject each of the respective applications on the basis it is frivolous or vexatious or otherwise lacking in substance including the impact of the death of the donor on the exercise of that power;
·      Submissions as to the release of the Jane Tolman medical report provided to the Board
The parties provided the written submissions contemplated by those directions.
The Board held a further preliminary hearing on 30 September 2016 to take oral submissions in respect of the written submissions. That hearing was attended by:
BT
Mr. Damien Egan – the lawyer for BT
TN (by phone)
DNE
HQE
At that hearing it became apparent that submissions made to the Board by HQE had not been provided to every party. That was remedied and the parties were given an opportunity to make further submissions in respect of HQE’s submissions. They did so.
A number of the parties made further submissions which were not sought by the Board or any other party. Nonetheless the Board has considered the applications, all submissions made to it and the various annexures to them. The submissions made to the Board are:
·      From TN
·dated 11 May 2016;
·dated 14 July 2016;
·dated 23 July September 2016 (clearly intended to be 23 September 2016);
·dated 11 October 2016;
·dated 14 November 2016; and
·dated 21 December 2016.
·      From or on behalf of BT
·dated 25 January 2016 revised 24 May 2016;
·undated submissions from Mr. Egan received on 29 July 2016;
·submissions received under cover of a letter from Mr. Egan at Murdoch Clarke dated 7 October 2016;
·submissions received under cover of a letter from Mr. Egan at Murdoch Clarke dated 14 October 2016;
·submissions received under cover of a letter from Mr. Egan at Murdoch Clarke dated 9 November 2016; and
·dated 9 December 2016
·      From or on behalf of DNE and HQE:
·undated submissions from Ms. Keene of McLean McKenzie & Topfer received by the Board on 26 August 2016;
·submissions of DNE dated 6 October 2016;
·submissions of HQE dated 7 October 2016; and
·undated submissions signed by DNE and HQE received by the Board on 25 November 2016
·      From or on behalf of HQE Miller
·dated 7 June 2016 received by the Board on 11 July 2016; and
·dated 13 December 2016 received by the Board on 19 December 2016.
In general, those submissions clearly demonstrated the deep divisions and intractable nature of the disputes between the donor’s children. Without attempting to be comprehensive or detailed, TN and BT allege that DNE, HNE and HQE have not acted in the donor’s best interests in respect of where the donor lived, her family relationships, and dealings with her property and that they inappropriately procured the execution of the EPA and changes to the donor’s will.

Disposition of the Applications for review

Although there are clearly a wide range of issues in dispute between the parties, none of the submissions articulated the orders which would be sought on a review other than the provision of records of dealings and transactions by the attorneys and guardian[1]. A review of a power of attorney or instrument appointing and enduring guardian is not simply a broad ranging inquiry into the conduct of the attorneys and guardians. It is directed to the remedies provided for in s33 of the POA Act and s34 of the GAA Act respectively. In the Board’s view, the failure to articulate the orders which would be sought on a review is because the death of the donor means that there is no legal or practical utility in reviewing the EPA and the Enduring Guardianship. Although the death of the donor may not remove the jurisdiction to conduct a review, the type of orders contemplated by s33 of the POA Act and s34 of the GAA Act are generally inappropriate once the donor has died. The principles articulated in cases in other jurisdictions confirm that position.[2] The submissions made on behalf of HNE and DNE support that view. The written submissions made by Mr. Egan on behalf of BT accepted that as a consequence of the donor’s death there is little if any benefit in orders other than those requiring the attorneys and guardian to provide an accurate record of the dealings and transactions made by them and provision of that record to BT and other family members involved in the hearing. Despite her written submissions pressing for a review (without specifying what orders would be sought on such a review), at the hearings on 17 June 2016 and 30 September 2016 TN agreed that to enable the requests for the provision of records to proceed that the reviews not proceed.
[1] The submissions on behalf of BT requested the Board hold a hearing and ultimately make the orders specified in paragraph 11 above. However, the Board considers the proper course in relation to requiring and releasing information provided to it is that set out in the specific statutory powers governing those matters, in particular s32AD of the POA Act, s34D of the GAA Act and s86 of the GAA Act. The Board is also cognisant of s35(6) of the POA Act. But similar considerations apply to the power granted by that provision as apply to the power under s32AD of the POA Act. It is therefore not considered separately.
[2] See for example UQH [2014] NSWCATGD 37, KBX [2015] NSWCATGD 2, IQU (Guardianship) [2016] VCAT 621, ODY (Guardianship) [2016] VCAT 804, DJB (Guardianship) [2010] VCAT 280, KS [2008] WASAT 29,

The Board considers that the death of the donor means the reviews would serve no useful purpose. Whatever the merits of the applications might have been had the donor lived, as to which the Board assumes without deciding that the allegations made by BT and TN would be established, the Board considers that the reviews now serve no useful purpose. Accordingly, the Board has decided not to exercise the discretion granted by s33(1) of the POA Act to hold a hearing to review the EPA. Similarly, the Board can see no purpose in holding a further hearing to review the Enduring Guardianship when none of the orders contemplated by s34 of the GAA Act are appropriate even if all the allegations by BT and TN are established. Further, in the Board’s opinion, whatever the position may have been during the life of the donor, and whatever the merits of the various allegations made against the attorneys and guardian, following the death of the donor, no useful purpose is served by the reviews. For that reason they are now lacking in substance and accordingly the applications for review of the EPA are dismissed pursuant s33(1A) of the POA Act and the applications for review of the Enduring Guardianship are rejected pursuant to s11(13)(a) of the GAA Act.

Applications for Record of Dealings and Transactions

Before dealing with the substance of applications for the Board to request a record of dealings and transactions there are some preliminary observations to be made.
First, clearly BT and TN would have been persons with a sufficient interest to apply to the Board for it to make requests authorized under s32AD(4) of the POA Act and s32D of the GAA Act during the donor’s life. Following the death of the donor, there is room to doubt that BT and TN maintained a sufficient interest to pursue the applications. Their interest as beneficiaries under the donor’s will might not be sufficient to give them such an interest. But the Board is prepared to act on the basis that they continue to have sufficient interest to pursue the applications which were commenced when they clearly did have such an interest.
Second, the applications by TN and by BT, at least as initially made, seek to have the Board request more than what the Board is authorised to request under s32AD of the POA Act and s32D of the GAA Act. For a start, they are not limited to dealings and transactions of the attorneys pursuant to the EPA or the guardian pursuant to the Enduring Guardianship. They seek provision of a record of dealings whether or not they those dealings were made as attorneys or as guardian. They also seek information about matters that could not constitute dealings or transactions by an attorney or guardian. And they seek to have the attorneys and guardian provide explanation for some of the dealings or transactions the subject of the request. The provision of such information is not able to be compelled by the Board pursuant to s32AD of the POA Act or s32D of the GAA Act. The Board can only require a record of dealings and transactions undertaken by the attorneys and the guardian in their respective capacities as such.
Third, the terms of s32AD of the POA Act and s32D of the GAA Act specify that the requirement to be made by the Board is for the provision of an accurate record of all dealings and transactions made by the attorney or guardian. The power granted by those provisions does not expressly authorise the Board to compel a partial record of dealings or transactions or a record of dealings and transactions in relation to particular matters. On one view therefore, the requirement to provide a record of dealings and transactions if it is to be made, must be in respect of all dealings or transactions in the specified capacity. Be that as it may, the Board understands BT and TN seek the provision of comprehensive records.
Fourth, although the submissions from Mr. Egan on behalf of BT suggested the power to require the record of dealings and transactions should be exercised after a hearing, the powers of the Board to request records of dealings by attorneys and guardians does not expressly require a hearing. The Board does not consider a hearing is necessary for that purpose, particularly where, as in this case, the parties have made extensive submissions about the matters in dispute. Further, in their submissions in response to the directions made by the Board on 17 June 2016 DNE and HNE have already volunteered much of the information which could legitimately be the subject of the applications by BT and TN. The ambit of the issues as to which it is said a provision of a further record of dealings and transactions is required is thereby substantially reduced. HQE has, in a less formal way, also indicated the nature of some of his dealings with the donor’s property.
At the preliminary hearing on 30 September 2016 Mr. Egan for BT indicated the outstanding matters which should be the subject of a Board requirement were as follows:
·      The information provided by DNE and HNE suggests furniture and personal effects were removed from 8 Olive Street[3]. The items removed should be specifically identified.
·      In a letter dated 9 November 2014 signed by the donor reference is made to her instructions to HQE, DNE and HNE to remove particular items from her house at 8 Olive Street. Those items should be identified.
·      The dealings specified by HNE and DNE start on 1 June 2015. Any dealings or transactions between 6 May 2011 and June 2015 should be specified, including any dealings by HQE while he was an attorney. In particular, it is said issues have been raised about money loaned to HQE and Patrick and there should be records of that.
·      The submissions provided by HNE and DNE refer to an account dated 21 December 2015 from Mr. N. A copy should be provided with an explanation.
[3] At the hearing on 30 September 2015 Mr. Egan suggested that was in January 2015. However, the list of actions undertaken as Attorneys provided by DNE and HNE in the submissions made on their behalf by Ms. Keene at item 4 of the “Dealings that relate to XXXX” refers to property and furniture removed to Hobart for storage in May 2015.
At the hearing on 30 September 2016 TN adopted those matters as being the issues as to which further records were required.
None of those matters relate directly to guardianship. The only purpose which would be served by requiring a record of dealings and transactions as guardian would be to retrospectively compel accountability in respect of decisions made as guardian. If HNE gave an inaccurate account of her dealings as guardian that would amount to an offence. It might be that the prospect of such accountability even after the donor’s death would serve the public interest by encouraging guardians to make decisions in the best interests of the represented person. But the Board is not persuaded that in this case that consideration requires it to exercise its power under s32D of the GAA Act. Given the donor’s death, the Board would not be able to provide any useful direction to the guardian in respect of past dealings or transactions. Even if the allegations made by TN and BT are correct, none of the decisions, if any, made by the enduring guardian in her capacity as such can be undone. The Board does not see any meaningful purpose is served by now requiring HNE to account for her dealings when there is no way that the interests of the donor can be advanced.
The question remains as to whether the Board should require the attorneys to provide a record of dealings. At the hearing on 30 September 2016 DNE and HNE said that they were prepared to provide further information as to the matters specified in paragraph 28 above and there was consensus that those matters would be the subject of a Board requirement. The Board reserved its decision and expressed the view that it would settle a requirement for those records to be provided. However, having carefully considered the matter further, the Board is not satisfied that it should exercise its discretion to do that. The reasons for that are as follows.
A purpose which might be served by requiring an accurate record of dealings and transactions would be to enable a remedy to be pursued in respect of any breach of duty by the attorneys which might be established by the record. Such remedies might include some form of compensation, damages or setting aside of the dealing or transaction. The Board is not persuaded that purpose justifies the exercise of the power for the following reasons.
The Board has a general supervisory power over attorneys and guardians. Section 33(2)(g) of the POA Act does give the Board the power to make orders it thinks fit as to the exercise of the power. Section 35 of the POA Act authorises the Board to give the attorney directions in respect of any matter arising under the EPA. A generous construction of those powers in light of the beneficial purpose of the legislation might arguably include a power to award compensation or to set aside a dealing or transaction. But such powers are not express. If the Board was intended to have such powers that could easily have been expressed. The Board therefore considers it does not have the power to provide those types of remedies.
Even if such remedies could be provided, after the donor’s death, the benefit of such remedies would be for the donor’s estate. There may be some complication in the estate pursuing such remedies because the executors DNE and HNE were the attorneys. It might be thought unlikely they would pursue remedies against themselves. But, as TN’s submissions of 14 July 2016 recognise, there are steps open to the beneficiaries of the estate to ensure that any claims the estate might have against the attorneys are pursued in the courts which have powers as fulsome as any that the Board might have in respect of breaches of duty by the attorneys. It is not the Board’s function to provide an alternative forum for what is effectively estate litigation. And it would be inappropriate to exercise the power under s32AD of the POA Act when doing so serves only to provide information in the nature of discovery which might be used in such court proceedings.
In any event, there was no suggestion by any of the parties that if the Board were to conduct a review it should make orders providing for compensation or the setting aside or otherwise affecting any dealings or transactions which might have been entered in breach of duty. For the reasons expressed above under the heading “Disposition of the Applications for Review” above a review is not appropriate. That position will not change as a result of the provision of the records sought. Requiring the provision of the records sought would therefore not advance the provision of any substantive remedy by the Board.
The Board accepts that in similar ways to those discussed above in respect of the power under s32D of the GAA Act, the exercise of the power under s32AD of the POA Act even after the donor’s death can serve the public interest. But the Board is not persuaded that consideration justifies exercising that power in this case.
In her submissions dated 23 September 2016 TN suggests that the Board should make orders and take action to prevent further conflict within the family. The authorities referred to by TN in that regard deal with the of a guardian who is also a family member embroiled in conflict. The considerations which apply in such cases do not apply to the exercise of the powers under s32AD of the POA with the same force. Neither do they apply with the same force, if at all, where the donor has died. In any event, given the entrenched nature of the conflict between HQE, DNE, HNE, BT and TN, the Board is not persuaded the provision of a record of dealings to the Board or to BT and TN will resolve or prevent further conflict. That Board is not persuaded that consideration, insofar as it is now relevant, justifies exercising the power in this case.
Finally, DNE and HNE have provided significant detail about their dealings as attorneys. They did so in the submissions provided by Ms. Keene on their behalf. DNE’s further submissions of 6 October 2016 addressed what became of the property in the extensive list provided by BT. The valuation sought by BT was provided with those submissions. That information is not verified by statutory declaration. It also refers to the dealings and transactions as “including” those specified. It therefore is expressly not comprehensive. But there is no significant inconsistency in the information provided.
In respect of the invoices from Mr. N and Ogilvie Jennings DNE provided an explanation of those dealings at the hearing on 30 September 2016. The further submissions of 6 October 2016 provided by DNE provide copies of the invoices. In her submissions of 11 October 2016 TN expresses the view that the donor should pay for those accounts. She clearly knows enough about the circumstances surrounding those transactions to express such a view. The Board does not consider any further documentation, information or explanation is required in respect of that transaction.
In the Board’s view, information provided by HNE and DNE to date adequately addresses the particular issues which appear to concern BT and TN. It is unlikely a further requirement from the Board will provide any material additional detail, at least in respect of dealings since 1 June 2015 when the EPA commenced.
In respect of dealings and transactions under the enduring power of attorney PAXXXX DNE said that she did not have any such dealings or transactions. The Board is not satisfied any useful purpose would be served by requiring her to provide a record of dealings and transactions which she says did not occur.
The position in relation to HQE is not the same. He has not provided as much detail of his actions. However, if he has breached his duty as attorney the personal representatives of the donor’s estate can pursue any remedies the estate might have in respect of that.
It also seems TN and BT are aware of significant detail in respect of the dealings and transactions undertaken by the attorneys. BT has extensively identified property about which she seeks information. The information provided by HNE, DNE and HQE to date has already been provided to BT and TN.
The Board does not consider the provision to it or to BT or TN of any further record or detail will now serve any useful purpose. The requests by TN and BT for the Board to require a record of dealings and transactions from the attorneys and guardian are rejected.

Medical Report of Dr Jane Tolman

The Board has received a report dated 16 January 2016 from Dr Jane Tolman, a Geriatrician to Dr Kon Exarhakos. The report is in respect of the donor. BT and TN seek release of that report. DNE and HNE, who are the executors of the donor’s estate and entitled to that report have consented in writing to its release. The Board is therefore justified in releasing the report as requested. A copy will be provided by the registry to Mr. Egan for BT and to TN with these reasons.

DATED this 2^nd day of February 2017

Ken Stanton
MEMBER

Schedule – List of property prepared by BT October 2016

Engagement ring
Father's large WWII war medals
Mother's small set of WWII war medals
Japanese Invasion money
Japanese Samurai sword
Father's war time letters
Father's bomb shell ash tray
Father's RSL badge
Father's crib board
Father's heirloom rosewood carved overmantel
Mother's heirloom gold necklaces x 4
Grandmother's cedar document chest
Grandmother's cut glass water jug
Mother's Killiekrankie diamond ring Mother's NZ greenstone ring
All other jewellery of mother's
Membership badges (mother's)
Life membership certificate/s mother
Mother's Campbell Pottery x 4
Mother's dressing table hand mirror
Mother's vintage fencing foil
Deceased brother's hand gun - rendered inoperable circa 1960's
Framed photo of grandmother
Mother's framed wedding photo
Mother's wedding dress
Framed photo of father in army uniform

BT's 21st birthday photo (missing from family photo gallery in lounge room Jan 2014)
BT's Uni graduation photo (missing from dining room wall Jan 2014)
Pewter plate, engraved with the words 'A Loaf of Bread, a Jug of Wine and Thou' made in USA
Mr. Pickwick's Quandary Plate - Vintage Crown Dual Florentine
Royal Daulton cup, saucer & plates x 2 sets
Cup, saucer & plates x 7 sets
Cup & saucer -gold rimmed (property of BT)
Set of six crystal wine glasses
Set of 'grape vine' embossed sherry glasses
Grandmother's gold rimmed jam dish
Green glass sherry glasses
Blue glass sugar basin in silver frame
Silver coffee pot, sugar basin & cream jug
Set of silver salad servers
Vintage pale red gravy boat and plate
Silver cake plate with handle
Silver cake servers
Small pink china watering can ornament
Small blue china watering can ornament with flowers on side
Red glass stemmed sherry glasses x 2
Set of four grapevine wine glasses in metal holder
Vintage embossed cream oval vase
White vintage vase
Wedding dinner set various pieces
Vintage small alarm clock (Mother's)
Mother's prayer books
The following books:

ØMilitia Battalion at War, the History of the 58/59 Infantry Battalion in the Second World War
ØThe War in Pictures - WWII six volume set, hard cover, original. Faux leather with embossed design
ØThe Second World War Vol 1The Gathering Storm - Winston Churchill
ØThe Second World War Vol 2 Their Finest Hour - Winston Churchill
ØThe Second World War Vol 3 The Grand Alliance
ØThe Second Work War Vol 4 The Hinge of Fate
ØCalculated Risk - Gen. Mark Clark Hard cover, original
ØOne of Our Submarines - Edward Young
ØThe Dam Busters - Paul Brickhill Hard cover, original
ØBerlin Diary -William Shirer Hard cover, original
ØBattle Cry - Leon Uric Hard cover original
ØClash by Night - Hard cover original with dust cover
ØThe Brave Japanese - Kenneth Harrison Hard cover original, with dust cover
ØThe Cruel Sea - Nickolas Monsarrat Hard cover original
ØEye Witness - Noel Monks Hard cover original
ØThe Soldier - Karlludwig Opitz - hard cover
ØGreat Military Battles - Cyril Falls
ØWe Who Survived
ØA Farewell to Arms - Ernest Hemingway Soft cover
ØWhere Angels Fear to Tread - E. M. Forster
ØVarious early vintage books from mother's childhood, hardcover cloth dustcover
ØMother's computer files containing transcripts of her short stories and poetry
ØOriginal books with mother's published short stories and poetry

Photos from family photo gallery and all other photos
Blackwood half round antique display cabinet Blackwood hall table
Blackwood single bed (mother's)
Blackwood 6 drawer tall boy (father's)
Bedside tables (mother's)
Vintage full length dress mirror (mother's)
Hardwood chest of drawers (mother's)
Hardwood dressing table (mother's)
Bedroom chair (mother's)
Vintage hardwood sunlounge
Vintage coffee table from sunroom
Cane furniture from sunroom
Easy rocker chair from dining room
Extension dining table and six chairs
Kelvinator freezer
Fisher & Paykel upright freezer Kitchen fridge (2010)
Full set of vintage kitchen canisters
Enamel mixing bowls/baking dishes
Large steel boiler
Vintage Sunbeam meat mincer
Sassafras pedestal lamp stand
Three piece lounge suite
Vintage brass Spaniel embossed firewood box and contents (converted to sewing box wooden cotton reels etc)
Blackwood coffee table
Small set of coffee tables
Vintage three drawer wooden filing cabinet

From basement of house

Full set of vintage weights used on scales in father's shop
Set of Imperial scales
Vintage spice chest of drawers originally from father's shop
Antique meat safe
Lawn mower
Garden shredder
Easyrider mobility scooter
Brimming Billabongs - Bill Harney (property of BT)
Tales from the Aborigines - Bill Harney (property of BT)