SBL (Review Enduring Powers)
[2015] TASGAB 16
•1 October 2015
GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE
SBL – Application for review of an enduring power of attorney and an application for guardianship and administration by the Department of Health and Human Services
SBL (Review Enduring Powers) [2015] TASGAB 16
REASONS FOR DECISION
Donald Jones (Chair)
Leon Peck (Member)
Mary Davies (Member)
1st October 2015
Review enduring power of attorney – capacity of the donor to understand the nature and effect of the document
Appointment of a guardian and administrator – guardian dismissed – in need of an administrator
Powers of Attorney Act 2000
Guardianship and Administration Act 1995
The applications
The applications in respect of SBL are:
Application for Review of Enduring Power of Attorney registered on the 20th October 2014.
Application for a review of an Instrument appointing an Enduring Guardian registered on the 20th October 2014.
Application for Guardianship and Administration.
All applications were lodged by Ms. Batten, a social worker at the Roy Fagan Centre where SBL was resident at the time.
Application for adjournment
Ms. Campbell of the Legal Aid Commission of Tasmania made a written application that the Board should adjourn these proceedings. We have read through the papers that have been lodged and in particular the submissions lodged by Ms. Campbell lodged on the 30th September 2015.
The Board was concerned that it was only at the last minute that it became aware that Counsel would not be available and had forwarded written submission. Clearly Counsel would have been aware of the hearing date and if she was unable to attend then other Counsel should have been briefed. It was unclear why she had not briefed Counsel or why it was left until the preceding day to lodge lengthy submissions. It was determined that as Counsel had sufficient time to prepare written submission any Counsel could have been easily instructed to appear.
As it transpired all other parties attended and it seemed inappropriate in those circumstances to adjourn the matter. Further, as the first two applications were unassailable it was only the two remaining applications as to Guardianship & Administration to be considered
Noting the circumstances set out in the applications and their supporting materials, we have unanimously agreed that first two applications should be dealt with as a matter of some urgency. This would mean the other applications particular as to his finances also required an urgent hearing.
The application for an adjournment was dismissed.
The hearing of the applications
A review of the evidence currently before the Board and in particular the report the Health Care Professional Dr Kishor Sivasankaran and the report by the Investigator to the Board there are considerable concerns as to the capacity of SBL to make reasonable judgements in respect of matters relating to all or any part of his estate.
Dr Sivasankaran, of the Roy Fagan Centre, in the health care professional report stated SBL suffered from a disability namely Bipolar Affective Disorder –Mania with psychotic features, and also from frontal lobe type Dementia. In his report he also stated that there was a potential for Manic symptoms which could be mitigated by ongoing treatment, and a potential for cognitive decline and personality changes to deteriorate in time.
This diagnosis was supported by Dr Tawasu, psychiatrist, who had been treating SBL for 12 months. In his report he said SBL had been suffering the disability for 3 years and his condition was deteriorating and fluctuating. In his report Dr Tawasu stated that it was reported to have given $3000 to a neighbour to enable them to buy a camera. It is unclear if the neighbour was TC, but coupled with the evidence given by TC that he was an avid photographer, it did raise a concern as to SBL’s ability to manage his finances and being susceptible to others.
During the hearing reference was made to the photographic skills of SBL and his photographic collection. During the general discussion it was indicated the female carer, TC, was also an avid photographer. This became relevant when reading the report of Dr Tawasu.
10.Dr Tawasu also stated that:
“SBL continues to have significant manic features including grandiose ideas (wanting to help the children of the world) with no insight into his symptoms. This in addition to his underlying cognitive deficits, poor planning abilities and impulsivity due to the nature of his dementia makes SBL overestimate his capacities, underestimate potential risk and make him vulnerable to social and financial misadventures”.
11.This statement is made by a psychiatrist who has known SBL for 12 months. It is unlikely that a report from a person who sees him for an hour or two would be able to make such a thorough assessment.
12.The report also indicated that SBL was 79 years of age and, up until his recent placement at the Roy Fagan Centre, lived alone in the North of the State. His wife lived in a nursing home and from SBL’s evidence he visited her regularly. It would not be unreasonable to assume that if SBL was manipulated as to his financial position this may have a deleterious effect on his wife’s accommodation.
13.The issue as to his financial affairs was fully discussed with SBL and it pointed out to him that the Board considered it appropriate in the circumstances for the enduring power of attorney to be revoked and an administration order be made as it would protect his financial position and would also protect the carers from having the responsibility of managing his finances. Both SBL and TC saw the benefit of such an order. It is acknowledged that the jurisdiction is not a consensual one, but if fully explained and accepted it is not consensual but an acceptance of what is in the best interest of the person and their financial security and reflects their wishes.
14.We note the submission that SBL has expressed concerns as to the involvement of the Public Trustee and has raised issues as to his motor vehicle and the submissions of his Counsel are also noted. But the Board is aware that there had been other appointments made by SBL in the past and subsequently revoked by him. The Board considers that the appointment of the Public Trustee as administrator is in SBL’s best interests.
15.With respect to the application for appointment of a guardian, it is also noted that whilst his condition appears to have improved to such an extent, following his admission to the Roy Fagan Centre, that the Public Guardian has authorised his return to his own home with former neighbours moving in with him to act as carers, and suggesting there is nothing further that the Public Guardian could offer, the Board still has concerns. It was further noted from the statements made that if full time carers had not been available the decision to let SBL return home would have been reconsidered.
16.The issue as to the motor vehicle was fully discussed and the concern was that SBL had indicated that he wanted to drive his motor vehicle and from the evidence it was clear he would have to undergo tests before his licence could be issued and he be permitted to drive. This was acknowledged by SBL and he indicated he would be undertaken those tests. He was informed that the Board would be prepared to have the vehicle released to save storage costs but only if it was stored away from the residence. Although SBL denied the intention to drive, contrary to the reports received, he was prepared to accept the condition contemplated by the Board.
17.There is a risk SBL may decide he no longer wishes to have DC and TC in his home and require them to leave. There is a further risk he may implement steps to carry out some of his altruistic plans if he was to suffer a relapse. A further concern is his general vulnerability to others with respect to his finances. In these circumstances it is appropriate that the Public Trustee be appointed to administer his estate pending further evidence adduced by SBL.
Conclusion
THE BOARD ORDERS that the guardianship application is dismissed.
THE BOARD ORDERS that Enduring Guardian is revoked.
THE BOARD ORDERS
That the power is revoked from the date of this order.
That The Public Trustee be appointed administrator of the estate of SBL.
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 administration order remains in effect to 30 September 2018.
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