QH (Review Enduring Powers and Guardianship)

[2012] TASGAB 2

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

Neutral citation: QH (Review enduring powers and Guardianship) [2012] TASGAB 2

QH – Application to review an enduring power of attorney by KBH and application for appointment of a guardian

REASONS FOR DECISION

Wendy Hudson (Chair)
Elizabeth Love (Member)
Kim Barker (Member)

Hearing date: 2 March 2012

Review of enduring power of attorney - resignation of attorney - donor's wishes - substitute attorney
Guardianship - 'need' for a guardian - least restrictive alternatives - best interests of the represented person

Guardianship and Administration Act 1995

Background and Context

QH (QH) is an 84 year old man who lived in a nursing home in Hobart from January 2009 until January 2012.  LH (LH) resided with her husband, QH, until she left the nursing home on 27 June 2011.

In 2008, QH signed an enduring power of attorney appointing LH. QH did not appoint an enduring guardian.

On 29 December 2011 one of QH’s four children, KBH (KBH), made an application to the Board seeking a review of the enduring power of attorney. The application arose from the family’s concerns about the actions of LH and her advice to them that she wanted a divorce and no longer wanted to be QH’s attorney.

On 5 January 2012 QH was transferred to the Roy Fagan Centre (the RF Centre). On the same day the Guardianship and Administration Board (the Board) received an emergency application from Dr Martin Morrissey, specialist at the RF Centre, for appointment of a guardian and an administrator for QH. On the 6 January 2012 the Board decided to appoint the Public Guardian as a limited guardian for QH under a 28-day emergency order.

On 17 January 2012 the Board received further information from the RF Centre raising concerns in relation to the financial affairs of QH. As a result the Board made a further 28-day emergency administration order, suspending the enduring Power of Attorney and appointing The Public Trustee as QH’s financial administrator.  

On 3 February 2012 the emergency guardianship order was extended for a further period of 28 days.

On 17 February 2012 KBH made a further application to the Board for the ongoing appointment of a guardian for QH.

On 2 March 2012 the Board considered KBH’s applications - for the review of the enduring power of attorney pursuant to the Powers of Attorney Act 2000, and the appointment of a guardian under Part 4 of the Guardianship and Administration Act 1995 .  At the conclusion of the hearing the Board decided to appoint:

1. The Public Trustee as substitute attorney in the Enduring Power of Attorney made by QH dated 29 April 2008; and
2. the Public Guardian as a limited guardian for QH.

On 7 March 2011 KBH wrote to the Registrar requesting a statement of reasons in relation to the decisions made by the Board.

Review of the Enduring Power of Attorney

By Section 33 of the Powers of Attorney Act 2000 (the Act) the Board is empowered to review enduring powers of attorney. Section 33(d) of the Act provides that a request for a review may be made upon application by any other person who the Board believes has a proper interest in the matter. At the commencement of the hearing the Board determined that KBH has a proper interest in the matter.

In the application KBH advised the Board that LH wished to relinquish the role of attorney and that he had been unable to obtain accurate financial information from LH. On 20 January 2012 the Acting Registrar, Ms Jane Bliss, gave LH notice of the application for a review of the enduring Power of Attorney. The Board requested that LH provide a written response to the application within 14 days. However, no response was received by the Board. The Board’s investigations officer, Ms Olivia Hill attempted to make contact with LH prior to the hearing on a number of occasions but was not successful. LH was given notice of the hearing but did not attend the hearing.

Although QH presented quite well throughout the hearing, all family members agreed that he did not have capacity to make his own financial decisions and he required a substitute attorney. QH stated that it would be better if his estranged wife was not his attorney. All four of QH’s children agreed.

Given LH’s lack of response and participation in the investigation and the hearing of the application, the Board could only conclude that LH was no longer the appropriate attorney for QH. Consequently the issue for the Board was who should be appointed as substitute attorney.

Discussions between QH and his children leading up to the hearing had resulted in an agreed position that KBH and BH would seek appointment as joint attorneys. The Enduring Power of Attorney dated 28 April 2008 appointed only one attorney. Section 33(2) (b) of the Act provides that the Board may appoint a substitute attorney. Ultimately further consideration as to whether KBH and BH would seek appointment as joint attorneys was not pursued once evidence was received in relation to QH’s wishes at the time of the hearing.

During the hearing QH initially stated that it would be better if a family member was his attorney. QH stated clearly that he did not want KBH to be his attorney as he did not believe that he could act in that role. He stated that he would prefer the substitute attorney to be BH but acknowledged that BH was very busy and that this would place another burden on him. BH agreed that he was not in a position to take the role of attorney.

After some discussions in relation to the potential for the appointment of a family member to the role of attorney to impact on their relationship with QH and the potential for a conflict of interest, QH stated that he thought a non-member of the family should be appointed. EH supported his father’s wishes. The rest of QH’s children, BH, KBH, and QT, preferred the substitute attorney to be a family member. KBH stated that he had background knowledge in relation to his father’s affairs however he confirmed that he had not had any previous decision making role or knowledge of his father’s financial affairs. BH stated that a family member should be appointed to avoid any complications in relation to QH’s plan to move from Hobart to Sydney. The Board acknowledged that QH and his family were in agreement that he would move to Sydney however ultimately the fact that he was planning to move to Sydney was not relevant to the appointment of the substitute attorney.

It is inevitable that people who come before the Board will have, to varying degrees, some questionable capacity. Even so, section 6 (c) of the Guardianship and Administration Act 1995 requires the Board, when determining who to appoint as QH’s substitute attorney, to take account of the wishes expressed by QH. The Board is mindful of the impact of QH’s cognitive decline on his ability to fully understand the situation however the Board also acknowledges that QH followed and participated in the hearing well and he expressed his wishes clearly, on a number of occasions throughout the hearing, that a non-family member be appointed as his substitute attorney.

QH also expressed his reasons why he believed that neither KBH nor BH should be the attorney and no evidence was given by any of the witnesses at the hearing which challenged or contradicted QH’s evidence. There were no vigorous arguments made to the Board in opposition to the wishes expressed by QH at the hearing. There were no other nominees or persons suitable for appointment. In such circumstances the Act enables the appointment of the Public Trustee as substitute attorney without the need for the Board to consider their suitability, unlike a private appointee. The Board therefore determined that The Public Trustee be appointed as the substitute attorney for QH.

Decision

THE BOARD ORDERS that The Public Trustee be appointed attorney of the power in place of LH.

Appointment of a Guardian

Prior to making an order appointing a guardian the Board must be satisfied that QH –

a)   is a person with a disability, and

b)   is unable by reason of the disability to make reasonable judgments in respect of his person and circumstances; and

c) is in need of a guardian – see Section 20 of the Guardianship and Administration Act 1995 (the Act).

The Board received medical opinions, from Dr Martin Morrissey and Dr Peter Hodge, which confirm that QH has a disability and provide a diagnosis of an alcohol related acquired brain injury. They also provide evidence that QH is unable to make reasonable decisions in respect of lifestyle matters.

During the hearing EH disputed his father’s medical diagnosis. Mr Colin Brett (Mr Brett), Clinical Nurse Consultant at the RF Centre, gave evidence that even though QH presents well and remains very intelligent, his short term memory is severely impaired and he is very impulsive and easily exploited. BH noted that the above opinions were consistent with conversations he had had with Dr Joanna Bakas, Psychiatrist at the RF Centre, who noted that QH’s mini-mental score on admission to the RF Centre was 9 out of 30.

There was no medical evidence presented to the contrary and all witnesses ultimately agreed that QH did have a disability and that by reason of the disability he is unable to make reasonable decisions. The issue for the Board was whether there was a current need for a guardian.

Mrs Margaret Colville (Mrs Colville), the Deputy Public Guardian, was appointed as QH’s guardian as a result of an emergency guardianship order. During her appointment she had made decisions in relation to his accommodation at the RF Centre and in relation to restricting visitors to QH. Mrs Colville gave evidence that there was an ongoing need for a guardian for QH as long as he was resident at the RF Centre however she did not highlight any ongoing need to make decisions in relation to accommodation once he left the RF Centre and a place at an aged care facility was found for QH. Mrs Colville stated that there was an ongoing need to restrict QH’s visitors. She stated that initially she had made the decision that LH would not be able to visit QH. Due to an oversight at the RF Centre however, LH was given access to visit QH. Mrs Colville said that the visit was uneventful and she consequently decided to allow LH to visit as long as the visits were monitored. Shortly thereafter LH visited QH in the company of a gentleman who identified himself as one of QH’s sons but when asked for identification, the gentleman decided to leave. Mrs Colville discussed the visit with QH and advised that he had told her that the gentleman had spoken to him about his finances, his level of debt, and that someone was ‘getting away with his money’. Mrs Colville said that this had distressed QH and that it was not in his best interests for LH to visit him.

QH’s family queried whether there was a need for a guardian in relation to health care decision, accommodation at a secure aged care facility, and the planned move by QH from Hobart to Sydney to be closer to his family.   Evidence was given that QH is currently compliant with his medical treatment and decisions have been made by BH as the person responsible.  In relation to the plan to move QH from Hobart to Sydney, all family members were in agreement that this was the right decision to make and QH wanted the move to occur. The Board advised the family that when QH moves from the RF Centre to an aged care facility, he may not need a guardian to make a decision that he reside at the facility because QH was able to  make this decision with support from his family  and they were likely to be in agreement. However, if the circumstances changed then the family could make an application to the Board for the appointment of a guardian at that time.

Prior to adjourning to consider the decision, the Board outlined to the parties a preliminary view that the Board could make an order appointing the Public Guardian for the period whilst QH was resident in the RF Centre. The Board noted that no party expressed objection to the Board’s preliminary view.

In determining whether QH requires a guardian, the Board is required to consider whether his needs could be met by other means less restrictive of QH’s freedom of decision and action – section 20(2) of the Act. The Board is also required to make an order only when it is satisfied that the order is in QH’s best interests - section 20(3) of the Act. The Board is only able to make an order in relation to a current need, not a future need that may or may not arise. The Board is satisfied that, while QH remains in the RF Centre, he is in need of a guardian to make decisions concerning where he lives and to restrict visitors where the guardian believes that the visitor would have an adverse effect on QH. In the circumstances the Board determined that the Public Guardian should be appointed as QH’s guardian.

Decision

The Board was satisfied that the represented person:

• is a person with a disability, and

• is unable by reason of the disability to make reasonable judgments in respect of his person and circumstances; and

• is in need of a guardian;

THE BOARD ORDERS

1. That the Public Guardian be appointed as the represented person’s guardian.

2. That the powers and duties of the guardian are limited to decisions concerning:

   (i)   where the represented person is to live whether permanently or temporarily, and

   (ii)     restricting visits to the represented person to such extent as may be necessary in his best interests and prohibiting visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person.

3. That the order remains in effect to 1 March 2013 or until the guardian reports to the Board that the represented person ceases to be in a secure facility, whichever is sooner.

Wendy Hudson

CHAIRMAN