QNH (Review Enduring Powers)

[2013] TASGAB 8

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

QNH, application for review of enduring power of attorney XXXX by QGH

QNH, Review of enduring power of attorney XXXX of Board’s own motion

GAB No. XXXX of 2013

REASONS FOR DECISION

QNH (Review Enduring Powers) [2013] TASGAB 8

Wendy Hudson (Chair)
Kim Barker (Board member)
Ged Dibley (Board member)

Date of hearing: 11 April 2013

Review of enduring powers of attorney – capacity of donor – appropriate administrator – conflict of interest – best interests of the represented person
Guardianship and Administration Act 1995 s. 54, 54(2)

1. On 11 April 2013 the Guardianship and Administration Board (the Board) conducted a hearing in relation to two enduring powers of attorney made by QNH in 2012.

1. QNH is a 93 resident at Riverview Lodge (the nursing home) which is operated by Presbyterian Care Tasmania. QNH has a diagnosis of Alzheimer’s disease. QNH is the mother of three adult children, KO, QGH and NH.  She lived with NH, who is blind, until she moved into nursing home care.  QNH appointed her daughter, KO as her attorney in February 2012 and subsequently appointed her son, QGH as her attorney in September 2012.

1. The Board considered the two enduring powers of attorney pursuant to the Powers of Attorney Act 2006 :

   ·An application made by QGH for the review of the enduring power of attorney XXXX dated 12 February 2012 which appointed KO as attorney; and

   ·The Board’s own motion review of the enduring power of attorney XXXX dated 17 September 2012 which appointed QGH.

1. At the conclusion of the hearing the Board:

   ·Found that QNH did not have the mental capacity to make either of the appointments of power of attorney in 2012, and accordingly declared that pursuant to section 33(2)(e)(i) Powers of Attorney Act 2006 both enduring powers of attorney were invalid;

   ·Was satisfied that QNH was:

   –    a person with a disability,

   –    unable by reason of the disability to make reasonable judgments in respect of her estate, and

   –    in need of an administrator;

   ·Ordered that The Public Trustee be appointed as QNH’ administrator.

2. The Board obtained a medical report from QNH’ geriatrician, Mr Scott Chamberlen, who was of the opinion that QNH had persistent cognitive dysfunction consistent with a diagnosis of Alzheimer’s disease. Mr Chamberlan stated that in September 2011 an occupation therapist assessment noted QNH required significant verbal prompting for simple tasks such as making a cup of tea, there was evidence of poor sequencing and decreased awareness, and she required verbal cues and prompting for each stage of self-care.

1. The parties indicated that they did not dispute that based on the information provided by Mr Chamberlan, QNH did not have the required mental capacity at the time she made both powers of attorney in 2012. The parties also agreed that QNH has a disability which results in a lack of capacity to manage her finances, and she is in need of an administrator. The issue for determination at the hearing was who should be appointed as administrator.

1. Section 54 of the Guardianship and Administration Act 1995 (the Act) provides the criteria which the Board must consider when determining who is the appropriate administrator. The section states that the Board may appoint The Public Trustee (section 54(1)(a)). It also provides that any other person may be appointed (section 54(1)(d)) only where:

“the Board is satisfied that:

i.the person will act in the best interests of the proposed represented person; and

ii.the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and

iii.the person is a suitable person to act as the administrator of the estate of the proposed represented person; and

iv.the person has sufficient expertise to administer the estate”.

1. Section 54(2) of the Act requires the Board, when considering (iii) above, to take into account the wishes of the proposed represented person, so far as they can be ascertained; and the compatibility of the person proposed as administrator with the proposed represented person.

1. In his application to the Board, QGH nominated himself as the appropriate administrator. Although in her written submissions through counsel, KO promoted herself for appointment, at the hearing counsel conceded that her main concern was to prevent the appointment of QGH as administrator.  Given her position and her lack of objection to the appointment of The Public Trustee, the Board did not consider her suitability as an administrator.

1. The Board considered whether QGH satisfied the criteria in section 54 of the Act.

1. In his application to the Board, QGH stated he had been managing his mother’s financial affairs since October 2011 and that he did not believe that he had any conflict of interest.  However he also stated:

   “My main concern with the outcome of this review is that my sister NH does not suffer mentally or financially…”.

   NH remains in QNH’ home and QGH was concerned that her welfare will be impacted by the appointment of an independent administrator.

1. In his written submission to the Board, Mr Williams, counsel for KO, stated:

   ·communication between QGH and KO is nonexistent; their relationship has deteriorated;

   ·QGH is not in a position to deal with the issue of withdrawals by NH from her mother’s bank account;

   ·There were concerns regarding QGH’ management of QNH’ money;

   ·The administrator will need to deal with the difficult issue of what becomes of the house, whether it is to be sold or whether it is to be retained and rented to NH.

   Mr Williams submitted at the hearing that the primary importance given by QGH to NH was clearly a conflict of interest.

2. Dr Chamberlain, Geriatrician, stated in his reports to the Board:

   ·QNH repeatedly said that QGH was the head of the family and she wanted him to be involved with any financial decisions and also stated that she would be happy if QGH and KO did things together;

   ·On the issue of her ability to appoint a Power of Attorney, QNH was unaware of any previous agreements in place or the nature of any documents that she might have recently signed and, despite education, was unable to demonstrate knowledge of the nature and affect  of any Power of Attorney agreement;

   ·“It is clear that there is significant tension between some members of her family and that it may be in Pearl’s best interests for an independent administrator be appointed to mange her financial affairs…”.

3. The evidence provided to the Board clearly established:

   ·     QNH’ wishes were for QGH to administer her affairs but also for QGH and KO to cooperate;

   ·     there was a breakdown of trust and communication between QGH and KO;

   ·     a complex decision would need to be made regarding the sale or rental of QNH’ house which would impact on QNH’ daughter, NH, as she currently lived in the house;

   ·     QGH has the technical skills and experience in relation to the role of an administrator – he had dealt with various government departments, banks and the nursing home on his mother’s behalf and he was his brother’s administrator;

   ·     QGH’ priority was NH and the potential impact of such a decision on her welfare.

   Taking into account these factors, on balance, the Board is not satisfied that QGH will act in the best interests of QNH as his priority is the protection of NH.  He is not in a position to communicate with KO in relation to the financial decisions which need to be made which may or may not be to QNH’ disadvantage. The Board was of the view that the complex decisions required an independent decision maker to ensure that the decisions were in the best interests of QNH.

4. During the hearing the Board indicated to the parties that it was considering appointing The Public Trustee. There were no vigorous arguments made to the Board in opposition to such appointment and QGH ultimately stated that he would accept it.

THE BOARD ORDERS 

1. That The Public Trustee be appointed as administrator of the estate of the donor.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the order remains in effect until 10 April 2016.

Wendy Hudson  Kim Barker  Ged Dibley

CHAIR  BOARD MEMBER             BOARD MEMBER