QCX (Advice and Direction
[2015] TASGAB 15
•16 October 2015
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
QCX – Application by an attorney for advice and direction from the Board
QCX (Advice and Direction) [2015] TASGAB 15
REASONS FOR DECISION
Anita Smith (President)
Date of determination: 16 October 2015
Enduring power of attorney – attorney seeking advice and direction – – power of the Board to vary or revoke an instrument - validity of the instrument impugned – allegations of serious defalcation of funds – best interest of the donor – dismissal of application to review enduring power of attorney as power revoked by advice and direction
Powers of Attorney Act 2000 – s. 33, 35
Guardianship and Administration Act 1995 - s. 11(13)(a)
On 14 August 2009, QCX (‘the donor’) executed registered enduring power of attorney number PAXXXX appointing his daughter and son, WT and CX, as his joint and several attorneys (’the instrument’).
On 11 September 2015 with the approval of WT another daughter of the donor, QI (‘the applicant’), made an application to review the enduring power. That application notes that WT had a terminal illness at that time. It also includes a letter by WT expressing suspicions that CX had embezzled funds from the donor’s estate, possibly involving more than $195,000.00 of the donor’s funds.
On 18 February 2009, Dr. Kanapathippillai Ratnagobal completed a Health Care Professional Report that diagnosed the donor as having dementia. He specified that by reason of his dementia, the donor experienced deficits in his orientation to person, place and time, his impulse control, his susceptibility to influence and his planning and reasoning skills. He stated that the donor would not be capable of making any decisions in relation to his real and personal property.
WT died on 15 September 2015, leaving CX as the sole attorney.
After an investigation of the application by the Board’s investigator, CX wrote to the Registrar of the Board with the following request:
“I hereby apply for advice and direction from the Board in respect of the scope of my appointment as [attorney] or the exercise of any power by me under the enduring power of attorney (PAXXXX).
I acknowledge that the Board can vary the effect of the enduring power of attorney or make any other order that it could have made on an application under section 33 of the Guardianship and Administration Act*. I also acknowledge that this may result in the Board declaring the enduring power invalid and appointing the Public Trustee as administrator for QCX.
The power of attorney instrument appointed me jointly and severally with my sister WT. WT has recently passed away and I am aware that the Board has received a copy of her death certificate.” (*One assumes he intended s. 33 of the Powers of Attorney Act 2000.)
Section 35 of the Powers of Attorney Act 2000 states:
“35. Advice or directions as to enduring power of attorney
(1) An attorney under an enduring power of attorney may apply for advice or direction by the Board on any matter relating to the scope of his or her appointment as such or the exercise of any power by the attorney under the enduring power of attorney.
(2) An application under subsection (1) may be made in accordance with section 34 or informally.
(3) The Board may require notice of an application under subsection (1) to be given to any person that the Board directs and may exercise its powers under this section without a hearing.
(4) The Board may –
(a) approve or disapprove of any act proposed to be done by the attorney; and
(b) give such advice or direction as it considers appropriate; and
(c)vary the effect of the enduring power of attorney or make any other order that it could have made on an application under section 33. …”
It is very likely that the donor suffered dementia to the same extent on 14 August 2009 as he did on 18 February 2009. Therefore, the Board has reason to question whether the donor had capacity at the time of execution of the instrument? Further, a very serious allegation has been made by one (deceased) attorney against another. The surviving attorney has applied for advice and direction and has acknowledged that this application may result in the termination of his appointment. For these reasons, the Board considers it is appropriate to vary the instrument by advice and directions at the request of the attorney with need for a hearing.
Section 33(2) empowers the Board to:
·vary a term of, or a power conferred by, the enduring power of attorney
·appoint a substitute attorney
·appoint an administrator of the estate of the donor
·declare that the donor did or did not have mental capacity to make a valid enduring power of attorney or to revoke an enduring power of attorney
·declare that the enduring power of attorney or the revocation of it by the donor is invalid
·revoke the enduring power of attorney and appoint an administrator of his estate
·make such other order as to the exercise of the power, or the construction of its terms, as the Board thinks fit
The validity of the instrument has been impugned by the pre-existing report of Dr. Ratnagobal. Additionally, with such serious allegations against one attorney it does not appear to be in the best interests of the donor for the power to continue. In the circumstances it appears that the appropriate course is to revoke the enduring power of attorney and appoint the Public Trustee as the administrator of the estate pursuant to section 33(2)(f) of the Act.
By reason of this determination, the application to review the enduring power of attorney is dismissed pursuant to section 11(13)(a) of the Guardianship and Administration Act 1995 as the relevant instrument is no longer in effect. It is anticipated that the allegations made in the application will be investigated by the Public Trustee as administrator for the donor and that they may seek redress for any losses from the donor’s estate.
Conclusion:
After consideration of a request for advice and direction from attorney, CX, the Board determines that it is appropriate to issue the following orders:
THE BOARD ORDERS
That enduring power of attorney PAXXXX be revoked.
That The Public Trustee be appointed as the administrator for QCX.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the order remains in effect until 15 October 2018.
Anita Smith
PRESIDENT
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