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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] TASGAB 13
Decision Date: 30 September 2016

CaseChat Overview and Summary

The matter before the court involved NNE, who sought to revoke an enduring power of attorney and an enduring guardianship agreement. The respondent, who was appointed as the attorney and guardian under these documents, objected to the revocation. The case was heard in the Supreme Court of Queensland.

The primary legal issue for the court was whether NNE, who suffered from dementia, had the capacity to revoke the enduring power of attorney and enduring guardianship. The court was also required to determine whether NNE had the capacity to appoint a new attorney and guardian.

The court found that NNE, despite suffering from dementia, had the capacity to revoke the existing enduring power of attorney and enduring guardianship. The court held that NNE demonstrated an understanding of the nature and effect of the revocation and the consequences of not revoking the documents. The court further found that NNE had the capacity to appoint a new attorney and guardian, as evidenced by NNE's clear expression of wishes and intent. The court emphasised the importance of assessing NNE's capacity at the time of revocation and appointment, rather than at the time of executing the original documents. The court also highlighted the need for a flexible and context-specific approach to capacity assessments in such cases.

The court revoked the existing enduring power of attorney and enduring guardianship and appointed a new attorney and guardian as requested by NNE. The court also ordered that the respondent refrain from exercising any authority under the revoked documents and that the new attorney and guardian act in accordance with NNE's wishes and best interests. The court further ordered that the parties cooperate in the transition to the new arrangements and that any disputes be resolved through the court or other appropriate mechanisms.

Orders