NNM (Review Enduring Powers, Guardianship and Administration)
[2000] TASGAB 1
•7 January 2000
Guardianship and Administration Board
Tasmania
Ref: XXXX and XXXX
In the matter of NNM
NNM (Review Enduring Powers, Guardianship and Administration) [2000] TASGAB 1
BEFORE THE BOARD: Ruth Hanson (Chairman), Melanie Bartlett, Leon Peck
REASONS FOR DECISION
Review of enduring power of attorney – review on the grounds of incapacity to execute the instrument and inappropriate management of the estate – failure to produce records of the estate
Guardianship – ‘in need of a guardian’ – conflict about whether the proposed represented person enter aged care or remain in care of a family member – concerns about level of care provided by family member
Powers of Attorney Act 2000 s.33
Guardianship and Administration Act 1995 s.20
These reasons for decision relate to orders of the Board made on the 19th November 1999 concerning NNM
Application Details
These were applications for the revocation of an enduring power of attorney pursuant to s11E of the Powers of Attorney Act 1934 and for the appointment of a guardian and an administrator under the Guardianship and Administration Act 1995. The applications, dated 29th and 26th October 1999, were lodged by UHC a Case Manager with the North West Aged Care Assessment Team, Ulverstone.
What the Board Decided
The Board decided that (i) the Enduring Power of Attorney made by NNM appointing KED as her attorney dated the 9th November 1998 should be revoked, (ii) the Public Guardian be appointed as NNM’ full guardian for 3 years and (iii) The Public Trustee be appointed as NNM’ administrator for a period of 3 years. In respect of the administration order the Board directed that it be reviewed within 12 months of the date of the order.
The Board also made a number of recommendations to the guardian and the administrator in respect of both financial and lifestyle matters.
Attendance at the Hearing
The hearing was held at Devonport on the 19th November 1999. The hearing to review the Enduring Power of Attorney was held first. Following an application by KED’s solicitor the Board agreed to exclude certain persons from the hearing (s12(3) Guardianship and Administration Act 1995). The following people attended the hearing to review the Enduring Power of Attorney and gave evidence to the Board:
(a) UHC (applicant)
(b) KED (daughter/attorney)
(c) QT (solicitor assisting KED)
(d) Ms Lisa Warner (Public Guardian)
(e) Mrs Heather Sheppard (The Public Trustee representative)
The following people attended the hearings to consider applications for the appointment of a guardian and an administrator and gave evidence to the Board:
(a) UHC (applicant)
(b) KED (daughter/attorney)
(c) QT (solicitor assisting KED)
(d) Ms Lisa Warner (Public Guardian)
(e) Mrs Heather Sheppard (The Public Trustee representative)(f) Ms Kim McGuire and Mr Tony Munro (Family Based Care North West)
(g)Sr. Sandra Wilby, Ms Gail Cooper, and Ms Noelene Reid (Strathcare)
(h) Sr. Judy Nowell (Dept. Veteran Affairs registered nurse)
(i) EI (friend)
(j) TX (observer)
Written Evidence
In addition to the applications and oral evidence the Board considered evidence from the following documents:
A Health Care Professional Report prepared by Dr Arvid Endelmanis dated 20 October 1999.
A report from Anne Perks, Senior Investigation and Liaison Officer for the Board dated 15 November 1999.
Statements of Accounts from Trust Bank in respect of NNM Account No. 0022353706 dated 10 November 1999 and 17 November 1999.
An undated statement listing various items of expenditure in respect of NNM prepared by KED and handed to the Board at the hearing.
Copies of Enduring Power of Attorney - NNM dated 9 November 1998, Application for Registration of said Enduring Power of Attorney dated 9 July 1999 and registration form for said Enduring power of Attorney dated 12 July 1999.
BACKGROUND
NNM is a 91 year old widow who has had several strokes in the last 2 years, resulting in loss of balance and dexterity, loss of mobility, and loss of the ability to verbally express herself. NNM’ doctor, Dr Arvid Endelmanis, also advises that she also suffers from dementia. NNM has lived with her only child, Mrs. KED, at Devonport, since 1997 following a period of hospitalisation during which it was clear that NNM would no longer be able to live alone in her own home. For 5 years prior to that, staff from the Aged Care Assessment Team had some contact with NNM while she lived in her own home, and the Department of Veterans’ Affairs have provided care services to her for approximately 10 years. Her doctor and carers agree she needs 24 hour care. Her daughter works, and requires the assistance of carer services to provide daytime care for her mother.
When NNM was discharged from hospital, KED arranged a day time regime for her mother which, in addition to the care funded through Dept. of Veterans’ Affairs, involved in-home care from Family Based Care North West and Strathcare Community Care Program, as well as attendance at the Orana Day Centre. A privately employed in-home carer has also been recently involved.
NNM’ son-in-law, EED, who is estranged from his wife KED, lives separately in the house, and her granddaughter, QED, also lives there with her infant daughter. NNM’ grandson, TED, lives in Sydney.
On the 9th November 1998 NNM donated an enduring power of attorney to her daughter KED. KED has exercised her powers as NNM’ attorney from the date of the execution despite the fact the Enduring Power of Attorney was not registered until 12 July 1999.
A number of carers and friends had expressed concerns over a period of some 18 months about the care of NNM and the management of her affairs.
These concerns included the quality aspects of the care provided by her daughter; the safety of the physical environment in her daughter’s home; NNM’ lack of use of respite service entitlements, despite her obvious pleasure during the periods she did attend; her capacity at the time she donated the enduring power of attorney; and the management of her finances and property at Devonport. The level of concern was such that the Public Guardian had been consulted. Attempts at discussion over a period of time were either dismissed, not acknowledged or not responded to by KED. These attempts are documented and form part of the official records of the care organisations concerned.
An attempt was made in May 1999 to engage KED in a round table discussion with representatives of organisations providing carer services for NNM. This was unsuccessful, KED indicating she believed it was not warranted. Consequently, the Board received applications seeking a review of the Enduring Power of Attorney, the appointment of an administrator and the appointment of a guardian.
After unsuccessful attempts to contact her by phone, KED was notified by letter dated 5 November 1999 of the applications received by the Board. The letter advised her of the Board’s investigation, listing the information required by the Board and its due date and invited KED to contact the Board for discussion of the matters raised. After telephone discussion on 12 November 1999 with her then solicitor, KED was summonsed to attend the hearing scheduled for 19 November 1999 in Devonport and to produce the required documentation at that time.
THE APPLICATIONS
Review of the Enduring Power of Attorney
As stated NNM donated an enduring power of attorney to her daughter on the 9 November 1998. The copy of the Enduring Power of Attorney produced to the Board had November 1998 crossed out and July 1999 inserted. The change was initialled. The Board was not able to ascertain who authorised or initialled the alteration. It is clear however that the Enduring Power of Attorney was registered on 12 July 1999. The Board also noted that The Trust Bank, Devonport, had accepted KED’s copy of the document in November 1998 and that she had been operating her mother’s account since that time in the belief she had the legal right to do so.
The Application to Review the Enduring Power of Attorney was made by UHC, a member of the North West Aged Care Assessment team. UHC’s application included a request for orders requiring the donee to lodge all records and accounts and for these to be audited. However, the main thrust of the application was for the Enduring Power of Attorney to be revoked and for an administrator to be appointed. UHC’s detailed application alleged extensive financial exploitation and abuse by the donee including misuse of the donor’s pension, the sale of property for the benefit of others and a failure to manage and maintain the donor’s property at Devonport. The Board was satisfied that UHC had a proper interest in the application having had dealings with NNM and her daughter in his role as a member of the North West Aged Care Assessment Team, and during that time having received a number of complaints from carers regarding the care of NNM by her daughter.
The Board was also satisfied that NNM had ‘mental incapacity’ at the time of the application and at the hearing. A Health Care Professional Report lodged by Dr Endelmanis indicated NNM had a disability, that the disability was worsening, that her capacities were reduced and that she may need 24 hour nursing home care. Dr Endelmanis also indicated that NNM was susceptible to undue influence “by family”. In a subsequent conversation with Anne Perks, the Board’s Senior Investigation and Liaison Officer, Dr Endelmanis stated that NNM was suffering from dementia. NNM was unable to attend the hearing. In accordance with Board policy Mrs Ruth Hanson visited NNM at Orana Respite Centre, Devonport two days prior to the hearing, spending almost 30 minutes with NNM. On introduction, NNM’ attitude was welcoming and she was advised of the reason for the visit. She vocalised in response to questions regarding her accommodation, finances and property but was not able to indicate her wishes in relation to these matters. Having already ascertained that NNM was unable to write, no attempt was made to enable her to communicate in writing.
NNM’ level of incapacity was also supported by a witness at the hearing who stated that NNM was often unable to make decisions. This witness has been attending NNM for ten years in her role as a registered nurse.
Pursuant to s11E (3)(a) of the Powers of Attorney Act 1934 (the Act) the Board after receiving an application and conducting a hearing in accordance with Division I of Part 10 of the Guardianship and Administration Act 1995 may revoke or make other orders in respect of enduring powers of attorney. The Act does not expressly state when it would be appropriate or necessary for the Board to revoke an enduring power of attorney. However, s11C of the Act deems the donee to be a trustee of the property and affairs of the donor and he or she must ‘exercise his powers as attorney to protect the interests of the donor’. In this context it is clear that the duties of a trustee include:
(i) to maintain separate records and keep proper accounts;
(ii)to keep the donor’s and the attorney’s funds and property separate, i.e. not mix the donor’s funds with his or her own money;
(iii)to avoid conflict and unauthorised profit.
It is also clear that the donee must in exercising his or her powers act in the overall best interests of the donor.
When asked what she understood being a donee of a power of attorney was, KED stated no one had told her what she had to do. She had taken no steps to inform herself of her responsibilities as her mother’s attorney, despite having signed a document accepting the power of attorney subject to the requirements of the Act. She also stated that she had been unable, until recently, to bring herself to attend to any maintenance or upkeep on her mother’s property, except for gardening. The reason given for this lack of care was that she, the donee, was very upset for her mother that her mother was no longer able to live there.
KED was requested to provide documentation relevant to the conduct of her mother’s financial affairs. Documentation presented to the Board at the hearing comprised a set of bank statements, which the donee had obtained from the bank a few days prior to the hearing, and a handwritten half page list of items with their approximate costs purchased since November 1998. The usual monthly statements provided by the Trust Bank had not been kept by the donee. Receipts had not been kept nor any record made of transactions undertaken on behalf of her mother. Other documents requested by the Board were not available, including those which would have identified the content and extent of the donor’s estate for which the donee was responsible. The donee’s representative advised the Board that his client had only returned from the mainland a few days prior to the hearing and had not had sufficient time to prepare the documentation requested. The Board is clear that a donee acting appropriately would be expected to be able to access at short notice, if not already have in their possession, documents identifying the nature and extent of the donor’s estate.
KED advised the Board that the Department of Veteran’s Affairs pension is paid directly into her mother’s account at the Trust Bank. KED then took funds from this account and paid them into her own cheque account. No form of budget or other record was kept to identify the donor’s regular or otherwise contribution toward household expenses. There is a clear conflict of interest where significant monetary gifts are made, on behalf of the donor, by the donee to the donee. Even when done in the belief that this was at the wish of the donor, as stated by the donee in this case, prudence would suggest that adequate documentation of such transactions and their purpose would have been essential.
The donee stated that her own feelings of sadness for her mother coupled with the fact that her mother could no longer live in her own home had prevented the donee from acting appropriately in the management and maintenance of the property at Devonport. The Board was of the view that this was a further demonstration of not only the donee’s inability to handle her mother’s affairs but her unsuitability to act as donee.
As stated the Board was unable to ascertain the wishes of NNM in relation to the Enduring Power of Attorney but there was clearly a need to clarify the status of NNM’ financial position and her financial ability to secure appropriate levels of care and support for the future.
KED stated she wished to continue to manage her mother’s affairs, or alternatively, to have some say in how they were managed. However, the donee’s “informal” approach to her responsibility leaves the donor vulnerable to financial exploitation, and is, at best, careless management. She stated she “has not been able to find the time” to carry out the responsibilities associated with exercising the power of attorney. The donee, in fact, demonstrated to the Board that she had made no attempt to manage the donor’s affairs appropriately.
The Board was in no doubt that the Enduring Power of Attorney in favour of KED should be revoked.
The Administration Order
NNM suffers from the effects of a number of strokes, impacting on her ability to communicate effectively.
The Board was satisfied that the requirements of S51 of the Guardianship and Administration Act 1995 were clearly met. Evidence before the Board including a report and statements from Dr Endelmanis clearly indicated that NNM had a disability and by reason of that disability was unable to make reasonable judgements in respect of matters relating to the whole of her estate. NNM was unable to indicate her level of understanding of her financial affairs and her rights and entitlements or the nature and extent of her estate generally. The Board was also satisfied that she was highly likely to acquiesce to the wishes and desires of family members in order to maintain harmony in the household of which she was a member, even if not in her best interests.
Most of the issues canvassed during the review of the Enduring Power of Attorney are relevant to this application and eventually to the selection of the chosen administrator.
The Board was satisfied of the need for an administrator. The immediate need was to identify the extent of NNM’ funds, property and entitlements to care and then to undertake the management of NNM’ finances and assets for her benefit. The establishment of both an appropriate budget to cover NNM’ day to day expenses and a financial management plan to ensure that the costs of appropriate 24 hour care and the costs of future care requirements can be met is necessary. The Board was satisfied that the appointment of an administrator was in the best interests of NNM.
In appointing the Public Trustee, the Board acknowledged the option suggested by KED of appointing her son, TED, who had indicated to her his willingness to assist his grandmother where possible. Whilst this may have been viewed as a less restrictive option, it was not a practical one as TED resides in Sydney.
The Guardianship Order
NNM suffers from the effects of a number of strokes, impacting on her ability to communicate effectively. She is frail, with significant health problems, and uses a walking frame to assist mobility. Her doctor indicates in his report that she may need 24 hour nursing home care, and according to respite care staff has told them that she does need nursing care.
The Board was satisfied that the requirements of S20 of the Guardianship and Administration Act 1995 were met. Evidence before the Board including a report and statements from Dr Endelmanis clearly indicated that NNM had a disability and by reason of that disability was unable to make reasonable judgements in respect of matters relating to her person and circumstances generally. NNM was unable to indicate her level of understanding of her rights and entitlements, including to health care and associated support. The Board was also satisfied that she was highly likely to acquiesce to the wishes and desires of family members in an attempt to maintain harmony in the household of which she was a member.
Many of the issues canvassed during the review of the power of attorney and the application for appointment of an administrator are also relevant to the application for the appointment of a guardian.
The number of carers present, from all the organisations providing support to NNM, was indicative of the level of carer concern about NNM’ circumstances and well-being.
The applicant outlined concerns about some difficulties which carers had with NNM’ care situation and the possibility of unmet needs. These had been discussed with him by various carers in the past year and a half and related to the amount and level of care which experienced and qualified people believed was needed by NNM.
There was evidence that NNM was left alone in the house at times, creating a significant risk to her safety, for example in the event of fire. There was also concern about the appropriateness of her physical environment, having to negotiate a number of steps from her bedroom to reach the toilet. She had a history of falls and injuries, including several breaks and soft tissue damage. Carers were of the opinion that KED had unrealistic expectations of her mother’s mobility and did not have an understanding of pain management sufficient to adequately assist with this aspect of her mother’s needs. There was a lack of use of respite service entitlements, despite NNM’ obvious pleasure during the periods she did attend respite. Situations of conflict and raised voices in the house were described as causing distress to NNM, and it was felt there had been an increase in stress levels since the baby had come unexpectedly into the house a few months ago. One carer described an incident in her presence when KED handled her mother roughly and yelled at her. Personal safety and security were in question, with the back door left open during the day to allow access for the household pets, and the manner of their presence in her room created a mobility hazard as well as a health risk. Respite services to which NNM is entitled through Department of Veterans Affairs are not being fully utilised, although KED has been seeking an increase in the hours of care provided for her mother at home. One carer valued by NNM was recently dismissed by KED, allegedly as a result of the carer’s involvement in the applications to the Board, albeit later reinstated at the direction of Family Based Care. This carer had received telephone calls at home from KED, the last one stated by the recipient to be abusive.
A close friend and confidante of NNM since childhood told the Board that during the past 10 years NNM had said to her many times that she was not happy and that the family was not happy, and not easy to please. In later years NNM had told her that she was sorry she had not planned for her old age and for when she would need care; that she had no control of her own life. NNM had several times mentioned her interest in Tandarra Nursing Home at Sheffield, but felt she had left it too late to arrange anything and that she would just have to do what her daughter wanted. Since the effect of the strokes has made communication very difficult for NNM, her friend had felt her contact was not welcome and it had only been when NNM was in respite care at Orana that the friend had felt able to visit with her.
All carers present at the hearing made comment on their observations of NNM’ situation, in essence NNM being left alone in the house, quality of life issues, stresses in the home impacting on NNM, and her gradual deterioration over the past 6 months. One carer stated that NNM was unable to get her clothing down to use the commode / toilet, and that NNM got frightened when the dog ran through her walking frame. Efforts by carers and the Aged Care Assessment Team case manager to address their concerns with KED did not result in significant improvements or were not acknowledged / responded to by her.
KED responded to the concerns outlined at some length, stating her mother was a very independent person who had always said she did not want to go to a nursing home. She stated NNM coped at home, and that more hours of care had been requested. Her mother was on her own at home for “up to two hours on days at times” and that NNM’ granddaughter, QED, was usually in the house, as she had an infant to care for. She stated security was not an issue, as the dog is there. She believed her mother would be very unhappy in a nursing home. Her mother’s friends had always been welcome to visit her at home. She resented the intimation that she was rough and kept people away from her mother and she believed times and situations described in case notes of carers had been altered, but agreed that she had spoken loudly to her mother and had slapped her face. She stated she had not met UHC until the hearing, had received no correspondence from him and had only ever had one phone call from him.
Given the conflicting views presented to the Board regarding NNM’ physical capabilities and the resultant level of care required, and the obvious reluctance of KED to enter into communication with her mother’s carers, indeed her apparent avoidance of such communication in relation to her mother’s care, the Board was absolutely of the opinion that it was in the best interests of NNM that a guardian be appointed and that a multi-disciplinary medical and care needs assessment be initiated forthwith. The Board was satisfied that the appointment of the Public Guardian was the only effective means of achieving this.
SUMMARY
During the hearing of these applications, KED was given generous time to respond to the concerns raised about her mother’s care and needs. Her careless approach to the significant responsibility of administering the affairs of another person and her resistance to recognition of the changing needs of her mother left the Board in no doubt that NNM’ best interests would be served by the immediate revocation of the existing Enduring Power of Attorney and the appointment of the Public Guardian as NNM’ guardian and The Public Trustee as her administrator.
Ruth Hanson
CHAIRMAN
Melanie Bartlett
MEMBER
Leon Peck
MEMBER
7 January 2000
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