QS (Review Enduring Powers)

[2011] TASGAB 3

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

QS – An Application to Review an Enduring Power of Attorney

Neutral citation: QS (Review Enduring Powers) [2011] TASGAB 3

REASONS FOR DECISION

Catherine Gavan (Chair)
Elizabeth Dalgleish (Member)
Gerard Dibley (Member)

Review of enduring power of attorney – revocation of enduring power of attorney – high level of conflict between parties

Administration – direction to consult with existing financial adviser

Guardianship and Administration Act 1995 s56

1. On 20 January 2011 the Board reviewed an enduring power of attorney made by QS appointing SKHM and TKU as her attorneys and XXXX as substitute attorney.  At the conclusion of the hearing the Board revoked the power and appointed the Public Trustee as administrator.  The order included a direction as follows:

   “4.      That the administrator is to consult with HB of XXXX  in relation to:
   - overall assessment of the financial strategies, and
   - ongoing reviews of asset selection at least quarterly.”

2. At the request of the Public Trustee, the Board has produced this statement of reasons limited to the reasons for the inclusion of paragraph 4 in the order.  The Board reserves its right to provide a full statement of reasons on other matters pertaining to the decision at a later date if required.

3. The hearing was attended by:

   ·SKHM - attorney

   ·TKU – attorney

   ·SW – XXXX

   ·HB – Financial Adviser

   ·Justin Clifford – Public Trustee representative

4. The Board commenced the hearing by noting a high level of conflict between the parties and outlining their preliminary considerations of the written materials that had been submitted by the parties prior to the hearing.  Those preliminary considerations anticipated an order in the terms set out above and noted that such orders had been made by the Board previously.  Persons at the hearing were given an opportunity to comment on the proposed order.  Mr Clifford from the Public Trustee contributed to the discussion but did not address the proposed order directly with the Board.

5. The Board considered that the inclusion of paragraph 4 was necessary for the following reasons:

   (a)   HB had been an advisor to QS for some years prior to her loss of capacity.  Therefore his involvement in her financial affairs reflects her historical wishes. 

   (b)The Board was impressed with the quality and comprehensiveness of the reports that HB provided for the hearing and were satisfied that he had acted in her best interests.  It wanted to ensure that the Public Trustee had ample opportunity to study the present structure of the investment portfolio and have access to HB advice prior to making any decisions to change the investment portfolio or, if the Public Trustee decided to retain investments with HB service, to ensure that the relationship between the two organisations was sufficiently formalised within the terms of the order.

   (c)HB’s stated in his letter to the Board dated 18 January2011:

   “We are concerned that any material change to QS’s existing financial arrangements or the issue of an Order which substantially alters the nature of the financial process that we have embarked on with QS to protect her financial position may be detrimental to her.”

   HB went on to say:

   “A financial plan requires regular periodic review and the suitability of such arrangements need to be revised to ensure they are adequate.”

(d)While on one hand the Board saw benefit in retaining the status quo in the investment structure, the Board also noted the need to monitor an estate to ensure that current market volatility does not detract unnecessarily from the value of the estate.  Accordingly, the Board added the condition for periodic reviews of the estate. 

1. Paragraph 4 of the order is not an absolute condition.  It requires only that the administrator consult with the existing financial adviser. Having consulted with that adviser the Public Trustee may decide to ignore the advice or make a decision contrary to the financial adviser. The condition in paragraph 4 does not undermine the usual powers and duties of an administrator set out in section 56 of the Guardianship and Administration Act 1995 nor does it override the prudent person responsibilities of a trustee company.  The condition exists to note the particular expertise that HB has with respect to this particular estate (as it currently exists) and to ensure that expertise is not overlooked when considering the future of the investment portfolio.

2. Upon reviewing the terms of the order for the purpose of writing this statement of reasons the Board has identified an ambiguity in the order which may have caused confusion for the administrator.  The order inadvertently has the effect as currently worded of meaning that, even if the administrator were to close all accounts with HB’s service and invest the funds in the various Public Trustee funds, the administrator should continue to consult with HB on a quarterly basis.  This was not what was intended by the Board and it is appropriate to clarify this by way of advice and direction of the Board’s own motion. 

3. Accordingly, the order is amended as follows:

THE BOARD ORDERS

1. That the power is revoked from the date of this order.

2. That The Public Trustee be appointed administrator of the estate of QS.

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

4. For any period in which the funds of QS are invested through or with XXXX , that the administrator is to consult with HB of XXXX in relation to:

   • overall assessment of the financial strategies, and
   • ongoing reviews of asset selection at least quarterly.

5. That the administration order remains in effect to 19 January 2014.

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Cath Gavan	Ged Dibley	Elizabeth Dalgleish
CHAIRMAN	MEMBER	MEMBER