OIC (Review Enduring Powers) - [2018] TASGAB 11

GUARDIANSHIP AND ADMINISTRATION BOARD

BURNIE

OIC (Review Enduring Powers) [2018] TASGAB 11

STATEMENT OF REASONS

Leanne Topfer (Chairperson)

Date of hearing – 25 May 2018

Review of enduring Power of Attorney – presumption of capacity – later diagnosis of dementia – transfer of property by donor to attorney – attorney acting in best interest of donor – review dismissed
Guardianship and Administration Act 1995
Powers of Attorney Act 2000

An application was made by NS dated 4 April 2018 in respect of her aunt OIC. The application sought review of an enduring power of attorney by which OIC appointed her son FDC, as her attorney. The applicant sought:
(a)    A suspension of the operation of the EPA;
(b)    A revocation of the EPA;
(c)    The appointment of a new attorney or administrator. The applicant proposed the Public Trustee.
The concerns that motivated the applicant to make the application were stated in the application as follows:
“It appears that the POA is not acting in the best interests of NS. He has transferred her home into his own name. This was after a diagnosis of dementia was given. He is living at her residential and renting out his own home. ..”
The Board convened a hearing of the application on 25 May 2018 at which the following persons attended:
·     NS (the applicant – by phone);
·     Mr Anthony Mihal (solicitor for NS);
·     Graeme Stagg (delegate of the Public Trustee);
·     FDC (the attorney appointed by OIC).
The power of attorney was duly executed on 21 December 2012 and registered on 13 February 2013. There is a presumption of capacity, there was no evidence to the contrary, and the Board finds that the donor OIC did understand the nature and effect of the instrument at the time of execution.
However OIC now suffers from a mental incapacity namely dementia.
Pursuant to section 32 of the Powers of Attorney Act 2000, FDC as attorney under OIC’ enduring power of attorney is:
(a) Taken to be a trustee of the property and affairs of the donor according to the tenor of the power; and
(b) Must exercise his or her powers as attorney to protect the interests of the donor.
The Board has powers pursuant to Section 33 of the Powers of Attorney Act to make orders to review the enduring power of attorney.
At the outset of the hearing the solicitor Mr Mihal, speaking on behalf of the applicant, stated that she sought a number of orders on an interim basis pursuant to section 33(6A) of the Powers of Attorney Act 2000 as follows:
(1)    That the hearing be adjourned to a date to be fixed by the Board in consultation with the parties;
(2) That pursuant to section 17(2) of the Guardianship and Administration Act, the Public Guardian is required to investigate and report to the Board in relation to the power of attorney PAXXXXX including as to the following matters:
a.     The circumstances surrounding the transactions effected by transfers MXXXXX executed by the donor on or about 13 October 2015 and MXXXXX executed by the donor on or about 1 July 2016 including the attorney’s involvement therein;
b.    Whether or not it can be established that the donor had capacity to effect the transactions at the time the donor executed them;
c.     Whether or not FDC (the attorney) has exercised the power improperly.
(3)    That the attorney exercise the power to authorise the law practice Doolan & Brothers to release to the Public Guardian all documents held by that law practice belonging to [sic] within 7 days;
(4)    That the attorney provide the Public Guardian with an accurate record of all transactions and dealings under the power of attorney within 28 days.
The initial transfer of OIC half share of the property to FDC occurred on 13 October 2015. Her husband, FC senior then died and consequently OIC owned the remaining half interest and this was transferred to her son FDC on 1 July 2016.
Mr Mihal referred to the aged care client record dated 07/05/2015 completed by the ACAT assessor who was an occupational therapist which diagnosed her as suffering from a number of health disorders which did not include dementia. Page 6 of the report stated as follows:
“Cognitive testing was not administered. Rick (FDC) reports decrease of STM and cognitive function over the last 12 months and more rapidly over the last 6 months. OIC has a history of anxiety and depression. She is concerned re her husband’s failing health and future care.”
Mr Mihal stated that OIC was very dependent upon her son for care, that the transfer of the property into his name had been witnessed by a solicitor and it was alleged FDC had organized for the transfer to occur. It was stated it was a cause for concern as to whether she had capacity to execute the transfer. She was also very dependant on her son for her care and was in a vulnerable position. She was also isolated from the rest of her family in NSW. The Board made some findings in respect of that early this year when NS had applied for a review of the enduring guardian by which FDC had been appointed her enduring guardian. In his role as guardian he had sought to restrict access to OIC by family members including the applicant and her daughter, MO.
At that time the existence of the transfers weren’t known and weren’t referred to in the Reasons for Decision which was handed down on the 18 January 2018. The Board held essentially that FDC had good reason to shield his mother from the rest of the family, and the application for review was dismissed.
At any rate Mr Mihal continued by stating that there was a further assessment on 30 March 2016 whereby a firm diagnosis of dementia was made. Mr Mihal referred to the cognitive skills assessment dated 30 March 2016 where OIC had difficulty in answering some basic questions and to the report from the nurse Denise Chaston of Tasmanian Health Service dated 22 February 2016 which stated:
“On interview it appears that OIC’s cognitive impairment is a progressive course which is getting slowly worse over time. Her conversations can be repetitive and she is able to remember faces but not names. Both her short and long term memories are patchy. .. She has a definite cognitive decline in both cognition and function which requires prompts and greater supervision.”
Mr Mihal stated that these reports indicate that while there was no evidence of any wrong doing there was good evidence that by the time of the second transfer OIC was suffering from a disability. He stated that the suspicion of incapacity warrants further investigation into the involvement of the attorney in those transactions themselves and the other transactions in respect of his power.
The Board then heard from FDC who said that his mother has had anxiety and depression much of her life, and that her marriage to his father wasn’t easy. He was an alcoholic and violent and the children would protect their mother. He said they all had a very difficult upbringing but OIC still doted on her husband. OIC was very worried and concerned about him, and particularly when he became ill and after he had a number of stokes in July/August 2015. He said that after her husband’s death in 2015 her capacity was good most of the time, but it did fluctuate. Although her short term memory may have been affected she was lucid much of the time. Her long term memory was generally good. Her condition has now improved she is at Tandara, particularly as she is not surrounded by the difficult memories of her husband.
FDC then submitted to the Board a number of documents which had been sent to OIC by her solicitor Ms Crystal Garwood, who had acted in the transfer of the property at Devonport and witnessed the transfer documents. The documents included:
(a)   A letter to OIC dated 18 September 2015 in which Ms Garwood confirmed her instructions that OIC wished to sever the joint tenancy so that she and her husband would each hold 50% of the property and then to transfer her 50% share of the property to her son FDC. It stated inter alia:
“You explained to me at our appointment that you wished to make this gift to your son as he has cared for you and your husband for years. You indicated to me that you understood that your other three daughters would not receive any share of this 50% of the property. You instructed me that your daughters are not actively involved in your life, that they are all well off financially and that you do not wish for them to receive your interest in the property.”
(b)   A typed contemporaneous notes of Ms Garwood’s conversation with OIC of 8 September 2015 when she states she took instructions from OIC in relation to the severance of the joint tenancy and transfer of her half interest of the property to FDC.
The Board read this note at the hearing and it stated as follows:
“You were sitting outside in the sun when I arrived putting moisturizer on your legs. I discuss with you the property you own at Devonport. You talked to me about the street and how quiet it is and that you enjoy living there. You joke that everyone is always at work and a canon could go off in the street and nobody else would notice. I hand to you a handwritten piece of paper dated 17 June 2015. I ask you if you recognize this. You say it is your handwriting and that this is your wishes as to the property. You comment on how good your handwriting still is for an old lady.
You explain to me that your husband has been unwell and that he is in hospital. You start telling me about your husband and when you first met and his days in the army. You detail to me how hard you both worked for the house and how old you are now.
I discuss your intentions as to the property. You say you want to gift it to your son now.
I discuss with you the severance of the joint tenancy and the fact that we cannot deal with your husband’s share as he does not have capacity. I explain that his 50% will stay in his name and be dealt with in accordance with his will.
You instruct me that you want your share in the house to be protected. You say that you want your son to receive your 50% share. You say you think he deserves this as he has looked after you both for years.
I ask you about your other children. You tell me about your three daughters and your grandchildren, particularly the two lawyers. I advise you that if you transfer this 50% share that your other children will not receive any share of that 50%. You say that this is what you want. You say that they are not involved in your life and they are all well off financially, and that you do not want them to have your interest in the house.
I explain the document to you and you sign the severance and transfer in front of me.
I leave you sitting in the sun eating cake. My view is that at the time of signing the document you had capacity and understood the consequences of signing such.
Crystal (20 minutes)”
(c)   A deed of gift dated 23 December 2015 which had been signed by OIC and prepared and signed in front of Ms Crystal Garwood in which OIC gave FDC the remaining 50% of the property. The deed was signed by OIC and FDC, and witnessed by Ms Garwood.
FDC recounted that his mother had asked to see her lawyer and was very lucid as she sought the appointment with Ms Garwood on 23 December 2015.
In relation to the criticism which had been made that there was not as much in his mother’s estate as the applicant would have expected, FDC said many, many thousands of dollars had been provided to his sister ON by OIC over the years. ON’s husband had been abusive and money was provided by OIC to assist her daughter. FDC spoke about how he deals with his mother’s funds. She is on a pension from which the fees for Tandara are taken. She is well provided for there. He confirmed that OIC had no other superannuation or investments
There was then a short adjournment to enable Mr Mihal to take instructions from the applicant and consider the documents which had been provided by FDC. Upon return Mr Mihal stated that NS’s concerns remain unassuaged and of particular concern is her view that OIC should have more funds than she had. She said that both FDC parents worked in the Government and that she expected that FC senior would have had generous superannuation benefits. NS said she would like to have the opportunity to obtain evidence from FDC’S sister, ON, as to the tens of thousands of dollars which had been sent to her. She stated that ON is in some financial distress and suffering disadvantage, and it was for this reason NS had taken up the concerns of the family and made this application and the previous application. It was stated that her concerns were genuine and if an investigation was made as to the use of the power of attorney the consideration of any intermingling of funds between FDC and his mother OIC’s funds might assuage the family’s concerns in New South Wales about OIC’s welfare.
NS then expressed her views about FDC and stated that he was very clever with words - “A spider who likes to spin a web.”
She stated that he was very manipulative, motivated by greed and that she remained very concerned as to whether her aunt had enough money to buy a dress. She questioned if she has writing paper and stamps.
FDC replied with wearied emotion and stated that OIC does have writing paper and stamps and wishes no further contact with the applicant and OIC’ daughter ON. He stated the people at Tandara are kind and generous, she is enjoying life there, she goes to Bingo, enjoys art classes and wants to stay there. He indicated that OIC only wanted contact with his other sister DI. FDC spoke at some length of the psychological and emotional toll the applicant’s approach was having on both his mother and on him.
The Board listened to FDC and was satisfied that he was acting and would act in his mother’s best interests.
In the circumstances, taking into account all of the evidence and submissions provided to the Board, the Board made the following findings:
(1)    This is an application to review a power of attorney in respect of OIC.
(2)    The power of attorney was duly executed and created in February 2013. There is a presumption of capacity, there is no evidence to the contrary and the Board finds that the donor did understand the nature and effect of the instrument at the time it was executed.
(3)    The application for review of the power of attorney was motivated by concerns in relation to the transfer of property at Devonport to FDC on the basis that the donor’s capacity to do so was questionable at that time.
(4)    The Board has read the documents provided by Ms Garwood, the contemporaneous notes of the conversation with OIC, the explanation given by FDC, and listened to the parties, and the Board is satisfied that no further enquiry needs to be made with respect to those transfers and FDC’ roles in it.
(5)    There is no material to suggest that FDC is not dealing with his mother’s affairs appropriately or that he is not acting in his mother’s best interests.
(6)    In the circumstances the grounds of the application have not been made out and the application is dismissed.